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Advertising and the Law By Rodriguez-Sierra, Jorge: Administrative Law/ Regulations

Advertising and the Law

Agencies that Regulate Advertising


The Federal Communications Commission (FCC) regulates communications by radio, television, wire, satellite, and cable in the U.S. The Federal Communications Commission (FCC) regulates communications by radio, television, wire, satellite, and cable in the U.S. 


Congress created the Consumer Financial Protection Bureau (CFPB) after the 2009 financial crisis to regulate mortgages, student loans, credit cards, and other financial products and services used by consumers. 


 United States Postal Inspector

Among its many responsibilities, the USPIS enforces the laws regarding illegal or dangerous use of the mail system and conducts investigations (sometimes in conjunction with other federal agencies, like the FTC into criminal acts involving the mail.


Econsumer.gov, which was established in 2001, is a website where consumers can file complaints about online and related transactions with foreign companies. 


The Food Safety and Inspection Service (FSIS) is the public health agency in the U.S. Department of Agriculture responsible for ensuring that commercial meat, poultry, and egg products are safe, wholesome, and correctly labeled


 The Internet Crime Complaint Center's self-proclaimed mission is to “serve as a vehicle to receive, develop, and refer criminal complaints regarding the rapidly expanding arena of cyber crime.” 


The National Organic Program (NOP) is a marketing program within the USDA Agriculture Marketing Service. The NOP is tasked with ensuring compliance with the Organic Foods Production Act  and its related regulations. 


The OCC is charged with regulating and supervising all national banks and federal savings associations in order to ensure that they comply with relevant laws and treat customers fairly.  As part of that mission, the OCC regulates advertisements by these entities


 The Federal Trade Commission (FTC), which was created in 1914, is a federal agency that is tasked with promoting consumer protection.  One of the central ways it does this is by regulating the advertising industry. 


In addition to collecting federal excise taxes on alcohol, tobacco, firearms, and ammunition, TTB is also responsible for assuring compliance with federal tobacco and alcohol labeling and marketing requirements. 


The Department of Interior (DOI), established in 1849, is the federal department responsible for protecting the country’s natural resources and cultural heritage. 


Since 1970, the National Credit Union Administration (NCUA) has been the regulator and primary enforcement authority for federal credit unions.  Among its many responsibilities, the NCUA is charged with enforcing its advertising regulations. 


The stated mission of the U.S. Securities and Exchange Commission (SEC), which was created in 1934, is to “protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.


The U.S. Food and Drug Administration (FDA) is the federal agency that is responsible for protecting public health through regulation and supervision of several different types of products, including food products, tobacco products, medications, medical devices, dietary...


The U.S. Department of Justice (DOJ), which is led by the Attorney General, is the federal executive department responsible for enforcing federal laws.  Among other things, it works with other federal agencies (such as the FTC)

* Source Truthinadvertising.org

FCC Standards

In interpreting advertisements, Federal Trade Commission may rely on its own expertise in such area and need not resort to surveys and consumer testimony, and Commission's finding that ads indicated that doctors recommended plaintiff's analgesic product more than any other over-the-counter internal analgesic was supported by substantial evidence on the record.  Bristol-Myers Co. v. F.T.C., C.A.2 1984, 738 F.2d 554, certiorari denied 105 S.Ct. 960, 469 U.S. 1189, 83 L.Ed.2d 966.Antitrust And Trade Regulation Key Number 369

*Source: Westlaw Next

The FCC's powers of enforcement are delegated by Congress through 47 U.S.C. SS 307308312(a)312(b)503(b)(1988). For simple violations, the FCC issues letters that serve as notice to the broadcaster of the violation and request a statement concerning the matter. 47 C.F.R. SS 1.80(f)1.89(a) (1993). The FCC can also levy fines, called forfeitures, for violations of the communications law. More serious violations can result in larger forfeitures. 47 U.S.C. S 503(b)(2)(D) (Supp. 1993); see also Bittner, supra note , at 50. Before imposing a forfeiture penalty, the FCC issues a written notice of apparent liability indicating the violated rule or regulation, the act constituting the violation, the facts that support the charge, the date of the conduct, and the amount of the forfeiture. 47 U.S.C. S 503(b)(4) (Supp. 1993);47 C.F.R. S 1.80(f) (1993). The respondent has approximately thirty days from the date of notice to show, in writing, why the forfeiture penalty should not be imposed or should be reduced. Id. S 1.80(f)(3) (1993). FCC

“CRUCIFIED BY THE FCC”? HOWARD STERN, THE FCC, 

AND SELECTIVE PROSECUTIOn Seth T. Goldsamt Columbia Journal of Law and Social Problems

 

 

 

 


 

The FCC itself does not keep a public database of its rule sections.  That task is performed by the Government Printing Office for most agencies.  These rules and regulations are compiled in the Code of Federal Regulations (CFR).  After October 1 of each year, the GPO compiles all the changes to, additions to, and deletions to the rules and republishes the Code of Federal Regulations with the updates.

FCC.GOV

 

Can You Say That on TV? Broadcasters Aren’t Sure


What does this mean for marketers?

After pouring over the FCC website, and the Federal Regulations issued by the FCC, it is obvious that the FCC does not have a list of words that are not permitted, much to the disappointment of George Carlin fans. Rather, if such a list was composed it would likely include hundreds of unacceptable words and phrases that would warrant an actionable complaint by the FCC. Marketers and broadcasters alike must govern themselves in many ways, while the only indicators demarcating limits of acceptability are examples from case law. In that way there is a pixilated, blurred line separating what is acceptable and what is not. The closer advertisers and broadcasters get to that hazy line the greater the likelihood they will have to answer and defend a complaint or fine issued by the FCC.

Advertisers are what fuel the standards of acceptability in broadcasting, however when advertisements shock or offend the public then it is broadcasters who must pay the price. In that way, our system here in America is really set up as a quasi check and balances scheme. If broadcasters offend the public, advertisers break ties and withdraw their financial backing of the network. Similarly, if the advertisers put forth indecent, or obscene advertisements the broadcasters are liable for a violation of FCC regulations and Federal law.

- Jorge Rodriguez-Sierra 

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