In 2008, the Federal Communications Commission (FCC) initiated a docket to determine whether existing television sponsorship regulations needed to be revised to address embedded advertising. This article first discusses current embedded advertising practices on television and the alleged problems with those practices. It then explains the current legal framework applicable to the practices. Next, the article analyzes the major reform positions that were articulated in comments to the FCC. This analysis includes a discussion of the First Amendment protections for advertising and for the creative works in which the integrated marketing is embedded, because many times the advertising is difficult to separate from its entertainment platform. The article concludes with recommendations for next steps by the FCC and industry.
Anonymous (2005), “Making Sense of Hybrid Speech: A Model for Commercial Speech and Expressive Conduct,”Harvard Law Review, 118(June), 2836–2857.
2.
BhagwatAshutosh (2007), “The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence,”University of Illinois Law Review, 783(2007), 783–833.
3.
BhatnagarNamita, AksoyLerzan, and MalkocSelin A. (2004), “Embedding Brands Within Media Content: The impact of Message, Media, and Consumer Characteristics on Placement Efficacy,” in Psychology in Entertainment Media: Blurring the Line Between Advertising and Entertainment, ShrumL.J., ed. Mahwah, NJ: Lawrence Erlbaum Associates, 99–116.
4.
Bolger v. Youngs Drug Products Corp. (1983), 463 U.S. 60.
5.
BushmanBrad J., and CantorJoann (2003), “Media Ratings for Violence and Sex: Implications for Policymakers and Parents,”American Psychologist, 58(2), 130–41.
6.
CaldwellJohn (2002), “New Media/Old Augmentations: Television, the Internet and Interactivity” in Realism and Reality in Film and Media, BondebjergIb, and JerslevAnne, eds. Copenhagen: Museum Tusculanum Press, 253–74.
7.
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), 447 U.S. 557.
8.
Children's Television Act (1990), Pub. L. No. 101-437, 104 Stat. 996-1000, codified at 47 U.S. C. § 303b; 47 C.F.R. § 73.670; 47 C.F.R. § 76.255.
9.
City of Cincinnati v. Discovery Network (1993), 507 U.S. 410.
10.
Commercial Alert (2008), “Comments Before the Federal Communications Commission in the Matter of Sponsorship Identification Rules and Embedded Advertising,” MB Docket Number 08-90.
CowleyElizabeth, and BarronChris (2008), “When Product Placement Goes Wrong: The Effects of Program Liking and Placement Prominence, Journal of Advertising, 37(March), 89–99.
FCC (1991), “Policies and Rules Concerning Children's Television Programming, Report and Order,” 6 FCC Rcd. 2111.
19.
FCC (1998), “In the Matter of Implementation of Section 551 of the Telecommunications Act of 1996, Video Program Ratings, Report and Order, CS Docket No. 97-55,” FCC 98-35.
20.
FCC (2008), “Notice of Inquiry and Notice of Proposed Rulemaking in the Matter of Sponsorship Identification Rules and Embedded Advertising, “ 73Fed. Reg. 43194.
21.
FCC (2009a), “In the Matter of Empowering Parents and Protecting Children in an Evolving Media Landscape,” 24 FCC Rcd. 13171.
22.
FCC (2009b), “In the Matter of Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, 24 FCC Rcd. 11413.
23.
Food and Drug Administration (2006), “Good Guidance Practices,” 21 CFR § 101.9(j)(13).
24.
Free Press (2008), “Comments Before the Federal Communications Commission in the Matter of Sponsorship Identification Rules, MB 08-90, Comments (November 21).
25.
FriestadMarian, and WrightPeter (1994), “The Persuasion Knowledge Model: How People Cope with Persuasion Attempts,”Journal of Consumer Research, 21(June), 1–31.
HomerPamela Miles (2009), “Product Placements: The Impact of Placement Types and Repetition on Attitudes,”Journal of Advertising, 38(3), 21–32.
33.
KrugmanHerbert, E. (1965), The Impact of Television Advertising: Learning Without Involvement,”Public Opinion Quarterly, 29(3), 349–56.
34.
LeeMira, and FaberRonald J. (2007), “Effects of Product Placement in On-Line Games on Brand Memory: A Perspective of the Limited-Capacity Model of Attention,”Journal of Advertising, 36(4), 75–91.
35.
LeeSandra (2008), “Product Placement in the United States: A Revolution in Need of Regulation,”Cardozo Arts and Entertainment Law Review, 26, 203–232.
36.
LewisHerschell Gordon, and NelsonCarol (1999), Advertising Age Handbook of Advertising.Chicago: NTC Business Books.
37.
Lorillard Tobacco Co. v. Reilly (2001), 533 U.S. 525.
38.
MartinKelly D., and Craig SmithN. (2008), “Commercializing Social Interaction: The Ethics of Stealth Marketing,”Journal of Public Policy & Marketing, 27(1), 45–56.
PettyRoss D., and Craig AndrewsJ. (2008), “Covert Marketing Unmasked: A Legal and Regulatory Guide for Practices That Mask Marketing Messages,”Journal of Public Policy & Marketing, 27(1), 7–18.
RotfeldHerbert Jack (2008), “The Stealth Influence of Covert Marketing and Much Ado About What May Be Nothing,”Journal of Public Policy & Marketing, 27(1), 63–68.
RussellCristel Antonia (2002), “Investigating the Effects of Product Placements in Television Shows: The Role of Modality and Plot Connection Congruence on Brand Memory and Attitude,”Journal of Consumer Research, 29(December), 306–318.
47.
RussellCristel Antonia, and RussellDale W. (2009), “Alcohol Messages in Prime-Time Television Series,”Journal of Consumer Affairs, 43(1), 108–129.
48.
RussellCristel Antonia, and SternBarbara B. (2006), “Consumers, Characters and Product, A Balance Model of Sitcom Product Placements Effect,”Journal of Advertising, 35(1), 7–21.
49.
SavareMatthew (2004), “Where Madison Avenue Meets Hollywood and Vine: The Business, Legal, and Creative Ramifications of Product Placements,”UCLA Entertainment Law Review, 11(Summer), 331–98.
Screen Actors Guild (2008a), “Comments Before the Federal Communications Commission in the Matter of Sponsorship Identification Rules,” MB 08-90.
52.
Screen Actors Guild (2008b), “Reply Comments Before the Federal Communications Commission in the Matter of Sponsorship Identification Rules,” MB 08-90.
WoodsLorna (2008), “The Consumer and Advertising Regulation in the Television with Frontiers and Audiovisual Media Services Directives,”Journal of Consumer Policy, 31(1), 63–77.
