Horsing around; foes of commercial free speech and product placement in films are down - but not out - after blows by the FTC and Budweiser's Clydesdales By Alan Pell Crawfor

Foes of commercial free speech and pro

This has not been a good winter for Dr. Michael Jacobson. The good doctor is executive director of the Center for Science in the Public Interest, as well as founder of the Center for the Study of Commercialism, institutions the earnestness of which reflects Jacobson’s own. He may well be the earnestest man in this town, and for that alone, I wish him well.
I wish he could have enjoyed the presidential inaugural parade last week. Unfortunately, the sight of the Anheuser-Busch Clydesdales lugging that four-ton beer wagon down Pennsylvania Avenue offended Dr. Jacobson’s sensibflities. He found the critters’ participation “outrageous,” and even tried to have them hobbled. In a letter to President Clinton, Jacobson’s Center for Science in the Public Interest and more than 20 other groups charged that “the inauguration of a United States president should not be debased by having a nationally televised parade that includes an advertisement for beer.”
If impressed, the Clinton team didn’t show it. “We invited them because we felt (the Clydesdales) reflected true Americana,” a Clinton camp spokeswoman said in explaining why Jacobson’s pleas were ignored. “They’re famous and dignified and elegant.”
These virtues, combined with the horse sense native to their species, might make them able members of the Federal Trade Commission, which early last month dealt Jacobson and friends yet another swift–but deserved—kick in the backside.
As such things go, this blow couldn’t have hurt too badly. The FTC denied a petition by the Center for the Study of Commercialism to require moviemakers to disclose all products whose use in a film is paid for by their manufacturers. The rejection was not unexpected, nor was the commission’s logic. Finding no “pervasive pattern of deception and substantial consumer injury” in product placements, the FTC announced that it would make no industrywide ruling on the matter.
While not surprised by the ruling, Jacobson is nonetheless disappointed. He seems disappointed in general these days, though he probably shouldn’t be. For those thirsting to crack down on advertisers, the beer wagon may be considered half-empty, but it may also be seen as half-full.
Consider Judge Marilyn Patel’s ruling, issued just before Christmas, in ANA, et al, v. Lundgren. This lawsuit challenged California’s rules governing so-called green marketing. The court struck down restrictions on the use of the word “recyclable” as unconstitionally vague–a victory for advertisers– but let the rest of the far-ranging law stand.
Consider, too, the U.S. Supreme Court’s decision, also made in late December, to hear Edge Broadcasting v. United States. A potential landmark case, Edge tests a Circuit Court ruling that upholds the right of a North Carolina radio station to air Virginia lottery ads to a largely Virginia audience, despite the Tar Heel state’s ban on such ads. No decision in either case is expected before April, and nobody quite knows what to expect.
“This could be a make it or break it term for commercial speech,” says Ronald Collins, a George Washington University law professor and a crony of Jacobson’s. “Edge could put the stamp of approval on the Posadas decision, which said, basically, that if an activity can be regulated, then speech about that activity can be regulated. The ad industry hates Po* sadas. But if it is expanded, then it opens up the door to all sorts of advertising regulation.” Collins is optimistic. “Frankly, I hope Posadas is expanded, and I think this court may do that.”
The mood in Washington these days is a heady one for liberal reformers, though you wouldn’t know it to talk to Doc Jacobson. The FTC’s refusal to act on his product-placement petition has left this otherwise soft-spoken gentleman uncharacteristically churlish. He says he won’t appeal the decision “until the current crop of FTC do-nothings is replaced.” But the first term to expire–that of Commissioner Deborah K. Owen–won’t do so until September of 1994. Until then, Jacobson hopes the President finds a new job for popular FTC Chairwoman Janet Steiger, “like ambassador to Trinidad and Tobago.”
The Clydesdales, if anything, irk him more. Then’ appearance, Jacobson says, is an “early sign” that the Clintonites have little interest in addressing the corrupting commercialism he sees engulfing culture.
They probably don’t. Even this new crop of Democratic innovaters has some sense of limits—an inkling, that is, that its function is to administer the machine~w of government, not remake mankind. Jacobson, I suspect, has no such awareness. He is one of those reformers whose argument is less with the inaugural committee, the FTC, the White House or the courts than it is with this human condition.
Doctor, heal thyself. Kick back and have a Bud.
Copyright Adweek L.P. (1993)