When Creativity Isn't Enough: What Makes Ads go Bad?


This article originally appeared in Issue# 37

An advertising lawyer explains the complex regulations that can relegate million dollar campaigns to the circular file.

As the senior broadcast attorney for a company that owns several worldwide advertising agency systems, it's my job to make sure our broadcast and print advertising meets legal requirements.

As a result, my desk is constantly swamped with print ads, radio scripts, coupon ads and storyboards for television commercials. These creative efforts represent hours of time and expertise — but many of them can't be printed, published or broadcast, even though they may be perfectly acceptable legally.

In fact, a large proportion of potential advertising is subject to self censorship, for a startling variety of reasons. Some examples may surprise you.

Cast your mind back to the Bicentennial Year and visualize a small scene only 60 seconds in length. While a portrait of a famous American is shown, an announcer for a major oil company says something like, X Company salutes you, Thomas A. Edison," and then goes onto describe Edison's accomplishments.

Now picture a more recent scene lasting only 30 seconds. Two G.I.s who have drawn latrine duty are gazing in horror at a large room full of porcelain fixtures. One soldier turns comfortingly to the other and assures him that "Mom" has told him about "X" Brand toilet bowl cleaner - its speed, efficacy and ease of use. Cut to a gleaming latrine with the reassured G.I. saying to his buddy, 'Boy, your Mom is smart! You must be adopted."

Scripts and storyboards for both of these commercials for large national advertisers were rejected as written. The first was never produced.

Such death by censorship might not represent much of a loss to literature or to the country. But why were these commercials rejected by the networks when "big business" wanted them?

We're all familiar with constitutional guarantees of freedom of speech embodied in the first amendment. Laws and regulations governing exceptions to these freedoms can be quite complicated, especially in the area of broadcasting. Slander and speech that creates a danger (yelling "Fire!" in a crowded theater) are well-known exceptions. But I think you might be surprised at the number and variety of limitations on free speech that can affect advertising:

  • false or misleading commercials violate regulations of the Federal Trade Commission;
  • obscene commercials are forbidden by the Federal Communications Commission;
  • products that claim to cure a disease require approval of the Food and Drug Administration;
  • encouraging over-consumption of beer or wine violates regulations of the Bureau of Alcohol, Tobacco and Firearms;
  • commercials that form part of a conspiracy to fix prices or interfere with competition may form the basis for prosecution by the Anti-Trust Division of the Department of Justice;
  • local telecasts of commercials making deceptive claims about price or performance of products invariably violate rules of local or state consumer protection authorities;
  • commercials that name a competitor and say something false about its product violate U.S. trademark laws;
  • copying someone else's protected words or music without permission violates the Copyright Act;
  • portraying an antisocial act violates network policies.

As it happens, our two examples were aborted for reasons of taste and network policy, not because they violated any legal requirements. CBS judged that the oil company commercial highlighting Thomas Edison's accomplishments was intended to promote its image through association with a famous person. And NBC also objected that the toilet bowl cleaner commercial implied that adopted people were stupid.

These examples are pretty innocuous. But what about what most of us would call "bad" advertising — advertising containing information or ideas that are false, deceptive, misleading, unfair or harmful?

It's important to realize that people who work in advertising have strong reasons for disapproving of this type of negative production. Aside from their personal feelings, they already have a tough job. They don't need to waste energy scaling additional barriers of skepticism raised by exposure to misleading advertising.

With this in mind, the advertising industry has added a number of voluntary codes to the layers of local, state and federal regulation and network policy restrictions noted earlier.

In addition, many industries have their own rules, as do national and local branches of the Better Business Bureau.

Agencies have controls as well. Print material is ordinarily reviewed when it is almost completed, but the heavy expense of television commercials, costing up to $1 million, requires earlier review. Staff attorneys or outside counsel usually examine storyboards - strips of cartoon-like illustrations containing copy, camera instructions and art work.

Despite these controls, there are a few factors that favor the "hit-and-run" advertiser.

First, as mentioned earlier, the Constitution of the United States promotes freedom of speech — and that's far too valuable to sacrifice in a vain effort to stop a few unethical advertisers.

Secondly, many objectionable campaigns appear late at night or at other nonstandard times, and may be locally based. They may cease before the enforcers are alerted, reducing incentive to prosecute.

Finally, a consumer stung by a misleading ad may prefer to forget the bad experience rather than pursue a complaint.

Unfortunately, this failure to act encourages the unethical advertiser. Even a victim who doesn't expect to recover losses may be performing a public service by complaining to the medium that carried the ad, the company whose ad was deceptive or the relevant self-regulatory or regulatory body.

As you can see, advertisers are fully aware of the restrictions they work within. They're also aware that their profits come from pleasing the public, not by alienating it. As consumers, we all can use the rules and regulations that already exist to solve problems and end abuses.

Author Bio: 

Robert G. Simon was the senior broadcast attorney for the Interpublic Group of Companies. He spent 35 years in advertising.