Chapter 13 addresses the law that governs advertising. This is an often-overlooked area within the study of the law of journalism and mass communication. But it remains integral to the field given the importance of advertising in contemporary mass media. Moreover, the topic tends to resonate with students, perhaps because its cases and situations deal with product names with which they are familiar.

As with other areas of journalism and mass communication law, advertising is regulated through the courts, legislation, and agencies. This three-pronged dynamic, however, is especially prominent in this area. Chapter 13 is structured largely according to these categories.

Understanding the regulation of advertising requires an understanding that even the U.S. Supreme Court was slow to accept. Advertising is a kind of speech—indeed, commercial speech. It may contain important information and the need to communicate that information deserves at least some First Amendment protection. The 1942 ruling in Chrestensen v. Valentine is typically used as a starting point to illustrate the Court’s cramped view of commercial speech.

While a form of advertising was at the root of New York Times v. Sullivan, the transformation of commercial speech law was not noticeably significant until the 1970s with the two Virginia cases. In the second of these,Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the ability to advertise the price of prescription drugs was at issue. The Supreme Court recognized that advertising may not only contain information that approaches the importance of political speech, but it may contain information that for some people is more important than political speech.

Still, the Supreme Court had yet to articulate a test to determine when advertising regulation is constitutional. That changed in 1980 with the Central Hudson case (and later slightly modified by Fox). The Court elaborated its commercial speech doctrine and established a framework to determine when an advertising regulation is constitutional in Central Hudson. Advertising regulation is constitutional if there is a substantial state interest, the regulation directly advances that interest and there is a reasonable fit between the interest and the regulation. The most noteworthy applications of this test have involved regulation of controversial goods and services, where the Supreme Court seems to be expanding the constitutional protection of commercial speech.

The regulation of advertising begins with legislative action. In 1914, Congress established the Federal Trade Commission, giving it authority to regulate advertising, and in 1938 it passed the Lanham Act, which defines unfair and deceptive advertising. Although other agencies are involved, the FTC is the primary advertising regulator. The commission uses several measures to police advertising—some preventive and some corrective. Advertisers who believe the FTC unjustly sanctions them appeal FTC rulings in federal court. Other federal agencies have authority to address problem advertising. These include the Federal Communications Commission (FCC) and the Food and Drug Administration (FDA). All of these agencies, together with the courts, examine ads to determine if they are false and misleading.

The growth of the Internet has meant a growth in advertising on the medium. As with other media, the government monitors Internet advertising. The Federal Trade Commission and federal and state legislators have dealt with improper advertising practices online. Congress enacted the CAN-SPAM Act to help prevent unsolicited e-mail messages. A majority of states also have anti-spam laws, though a section of at least one, Virginia’s, has been ruled unconstitutional.

Several recent cases seem to shift the Supreme Court’s protection of commercial speech. In POM Wonderful v. Coca-Cola, for example, the Court permitted POM Wonderful’s false advertising lawsuit to proceed even though the content labeling at issue met the relevant labeling requirements. The Court suggested that Lanham Act protections against anti-competitive behavior apply even to labeling that the FDA would allow. In a second decision, the Court also seemed to expand the application of the Lanham Act, here allowing a suit by a party that was neither a direct competitors nor a consumer but rather a firm that fell within the law’s “zone of interest” and suffered harms “proximately causes” by the advertising