Running head: ETHICS BEHIND TRUTH IN ADVERTISING ACT 1

Management Report: Ethics Behind the Truth in Advertising Act of 2016

Gabriela D. Roque

University of Mary Hardin-Baylor

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Executive Summary

The Truth in Advertising Act of 2016 was originally introduced in 2014 by Rep. Ileana Ros-

Lehtinen (R-FL-27), and proposed a second time February of 2016 to the House of

Representatives (H.R.4445 - 114th Congress. 2016. para. 1). If the bill passes, the Federal Trade

Commission will be obligated to file a report to Congress concerning images that have been

altered or adjusted to change the appearance and physical characteristics of the faces and bodies

of the individuals depicted in advertisements for the promotion of goods in the United States

(para. 2). The ethical dilemma is found in the decision to regulate advertising activities that

promote commerce for the benefit of public health and safety. Since Congress cannot authorize

regulation for editorial or artistic work that features digitally enhanced images due to First

Amendment protections, the effectiveness of this legislation on visual advertisements is

debatable.
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Ethics of the Truth in Advertising Act of 2016

From the old methods of mass marketing, to the modern ways of target marketing,

advertising has created a path for companies to connect with their consumers. In working

directly with the American consumer, advertisers have inevitably faced challenges with

government regulation, beginning in the early twentieth century with the Federal Trade

Commission Act of 1914 (Richards, 1990). While there is plenty to discuss concerning the ethics

in advertising practices, the question raised from the Truth in Advertising Act of 2016

reintroduction is if it is ethical for Congress to legislate corporate advertising activities as it

pertains to new technologies, including Photoshop.

Facts about Advertising Regulation

Advertising legislation is extensive and dates back to the early twentieth century. The FTC

was originally commissioned in order to enforce rules made by the Federal Trade Commission

Act of 1914, regulating unfair or deceptive acts or practices in or affecting commerce (15

U.S.C. 45. subsect. (a)(1)). While the FTC was originally charged with a blanket responsibility

over U.S. commerce, it was given little statutory guidance in regards to advertising practices.

The Commission deemed misleading advertising to fall under the category of unlawful

methods outlined in the legislation (Richards, 1990, p. 9-10). Although its original purpose was

to support the Sherman Act in breaking up monopolies and unfair competition, it not specific to

advertising. The FTCs interpretation of the legislation has become a stepping-stone for further

regulation of the advertising industry (p. 9).

The majority of U.S. advertising laws pertain to deception of the consumer, similar to the

new legislation introduced (Richards, 1990; Cunningham, 2014). Although laws against
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deception apply to all U.S. businesses, specific legislation regulating advertising for tobacco and

medication has sparked conversations about policing business practices in the past.

Tobacco

In the United States, the use of this crop dates back to the colonial days, however, cigarettes,

did not become the most popular way to consume tobacco until the 1920s (Wilcox, 1991, p.

62). Since then, the hazards of smoking cigarettes, including shortened lifespan, increased

chance of cancer, and risk of heart disease, have affected legislative impact on the industry (p.

62). Starting after the first report of the Surgeon Generals Advisory Committee on Smoking and

Health in 1964, the U.S. government has worked extensively to discourage cigarette sales with

legislation affecting tobacco advertisements (About Tobacco Laws, 2016, para. 9). The earliest

legislation affecting cigarette advertising is the Federal Cigarette Labeling and Advertising Act.

This required cigarette packages to have a health warning printed and having the FTC submit

[an] annual report to Congress that detailed labelling practices in the industry (para. 10). Since

then, laws to prohibit cigarette advertising on television and radio, to enhance graphic warning

labels on packaging, and to designate the FTC as an enforcer of these laws by submitting annual

reports to Congress evaluating the advertising methods within the industry (About Tobacco

Laws, 2016).

Medicine

Prescription medication is also impacted by government regulation because concern for

public health overrides the desire for corporate growth. While the FDA is the main authority over

advertising practices for prescription medication, the enforcement measures are similar to that of

the FTC. After the Food and Drug Act of 1906 was originally passed, the adjustments to

marketing drugs were not addressed until 1938 with the Federal Food, Drug, and Cosmetic Act,
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which requires new drugs to be shown safe before marketing (Significant Dates, 2014, para.

25). This legislation also requires advertisements for drugs to be accurate and not misleading

(Background of Drug Advertising, 2015, para. 2). Since the enactment of the Federal Food, Drug

and Cosmetic Act, the FDA has been committed to ensuring consumers receive accurate,

science-based information about the medicine they need (para. 1).

Truth in Advertising Act of 2016

Rep. Ileana Ros-Lehtinen first introduced the bill to the House of Representatives in March

2014, and reintroduced it nearly two years later (H.R. 4341 - 113th, 2014; H.R.4445 - 114th,

2016). The legislation is in response to regularly alter[ed] images in print and electronic

advertisements (H.R. 4445 - 114th, 2016, sec. 2(1)). The sponsors of this bill found that these

types of images have harmful psychological effects on consumers, especially young women

(Roeder, 2015). In essence, the cosponsors of this bill wanted to add deception by digital means,

specifically Photoshop, under the FTCs responsibility to report unfair or deceptive act[s]

(H.R. 4445 -114th, 2016; 15 U.S.C. 45(a)(1)). The legislation itself does not call for any real

action to take place, but the purpose is to bring awareness to the mental health effects media has

on the public (Dewey, 2014). While there is opposition to the bill based on infringement of the

First Amendment, the bill, as written, does not request more than an investigation by the FTC of

the implications of digital manipulation (Chapin, 2016, para. 9).

Limitations of the Truth in Advertising Act

Congress rejected the original bill submission because it did not provide adequate

exclusions for the editorial sector and publications, a protected area under the First Amendment

(Cunningham, 2014; H.R. 4445 114th, 2016). The new proposal includes specific wording that

acknowledges the proposal is referring only to commercial advertising (H.R. 4445 114th, 2016).
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While this bill calls for an analysis of the impact on health that advertising has on the public, it

has no bearing over editorial or artistic publications, which are just as prevalent in the media

(Cunningham, 2014). Even if the FTC finds a significant effect on consumer health directly

linked to digitally altered images, regulation of the advertising industry still may not change the

impact that publications have on society because editorial images not used for promotion

purposes that are digitally altered cannot be restricted (Cunningham, 2014). It is difficult to see if

this Truth in Advertising bill will lead to any valuable change in the media since it proposes

recommendations that can only regulate commercial advertising (Dewey, 2014).

Ethical Theories Pertaining to the Truth in Advertising Act

In taking legislative action toward regulating an act of commerce, is it ethical to regulate

advertising practices in order to protect consumers? Depending on the ethical theory applied, the

answer may differ.

Divine Command Theory
Observing this ethical question through the lens of divine command can offer insight to the

decision-making process. Divine Command Theory relates ethical decision-making to the word

of God and His expectations of man (Baggett & Walls, 2011). Community is a reoccurring theme

in the Bible, and according to multiple studies, the community of young men and women are

greatly damaged by the common advertising practices performed currently (Roeder, 2015,

para.4; Wykes & Gunter, 2005, p.145; Cunningham, 2014, para. 3). The importance of the

communitys wellbeing to God is outlined in the Bible, stating, if one part suffers, every part

suffers with it and we are many parts of one body, we all belong to each other (1 Cor. 12:26;

Rom. 12:5). God values the social aspect of human nature and requires men to respect each

others welfare.
The Bible also places emphasis on nature and the beauty of all that He has created. In

Genesis 1:27, the story of creation begins with God creating mankind in His own image (Gen.
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1:27). While this verse only outlines why digital alteration demeans Gods image of us, it still

creates a basis for lawmakers to agree on legislating commercial advertising under Divine

Command Theory.
Between serving Gods community and respecting Gods creation, the decision to regulate

advertising for the ultimate mental health of the public is ethical.

Ethical Egoism
Ethical egoists believe that in order for a decision to be ethical, it must be made with self-

interest in mind (Jennings, 2015, p.12). Since advertising drives commerce and economic

activity, the regulation of advertising would only hinder this movement toward economic

success. Another aspect to this dilemma is that regulation can only apply to commercial

advertisements, meaning editorial content will still be accepted because of the First Amendment

protection. If the FTC finds any data that correlates Photoshopped images with mental health

problems in consumers, the government cannot regulate Photoshop to the degree needed for

viable change in consumer health without infringing on the rights of editorial publications

(Dewey, 2014). Creating restrictions on Photoshop for commercial advertisers only is not

beneficial to consumer health, which is the purpose of legislation on advertising, as seen with

tobacco and prescription medication advertising. Since it is not in the lawmakers self-interest,

the decision to regulate visual advertising is unethical according to ethical egoism.

On the contrary, Hobbesian self-interest, the idea that society needs a strong government in

order to prevent chaos, may hold the legislation to be ethical. For Thomas Hobbes, the

governments duty is to restrain ethical egoism from the point of harming one another (Jennings,

2015, p.12). Hobbes may find that using unrealistically altered images damages consumers, thus

finding government action necessary in order to avoid chaos.

The Categorical Imperative
Philosopher Immanuel Kant is famous for developing this theory. He believed that an action

was ethical if it (a) did not have a one-sided benefit as the outcome, (b) was committed for the
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right reasons, and (c) was the action the subject would want if the situation was reversed

(Jennings, 2015, p.13). Kant believed that a person has cheerfulness of heart by genuineness

of a virtuous sentiment (Paton, 1971, p.57). He wrote that nothing can possibly be conceived

in which could be called good without qualification except good will, further emphasizing the

importance of intent (Kant, 1959, p.9). Former Hollywood marketing executive Seth Matlins

originally called for the advertising industry to reform its practices in 2011, which led to the

bills introduction three years later (Cunningham, 2014). His reasoning behind taking a stance

against digitally altered images was that he did not want his daughter to be subject to the

emotional, mental, and physical health issues associated with unattainable expectations in the

media (Cunningham, 2014, para. 3). By looking at the situation through the eyes of his daughter,

Matlins and the cosponsors of this bill made a decision based on another persons perspective.

They also made this decision wanting regulated advertisements for the purpose of helping the

health of those effected by the media, and not for bad intentions (para. 6). With these facts taken

into account, Kant would find the intentions behind regulating advertisements to be ethical under

the categorical imperative.

Utilitarianism
Utilitarian theorists find that the quantity of good produced by a decision is the only thing that

should matter (Kraut, 2007, p.12). As the overuse of Photoshop has no real advantage to the

mass population, it becomes necessary to act in favor of the largest quantity affected, the

consumers. Taking legislative action in order to protect the public from psychologically harmful

images and media is ethical under utilitarianism (Roeder, 2015).

Contractarianism
Also known as the theory of justice, contractarianism holds that a just society is organized

on the basis of principles, agreed upon by the people (Terkel & Duval, 1999, p.253). Since the

pattern of advertising legislation targets the benefit of public health, the decision to oversee this
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aspect of advertising would fall under the social contract concerning advertising. Advertising for

tobacco and medication are both heavily regulated because of the direct impact these products

have on the individual consumer. With the Truth in Advertising Act, the FTC would be

responsible for reporting the impact digitally altered advertisements have on consumer health

(H.R. 4445 - 114th). If the FTC finds a direct correlation with media practices used currently and

public health, the advertising industry may be subject to legislative restriction similar to tobacco

and medicine. At this point, John Locke, the philosopher famous for this theory, would find it

ethical to take legislative action against commercial advertising practices that overuse digital

enhancement.
Rights Theory
Rights theory refers to individual rights, and subsequent duty to respect or even promote

those rights (Terkel & Duval, 1999, p.236). Other advertising laws pertain to the consumers

right to accurate information and making purchasing decisions with full disclosure of the facts,

especially regarding health (About Tobacco Laws, n.d.; Background on Drug Advertising, 2015;

Significant Dates, 2014). Following this model, further regulation on advertising practices that

extend past the Truth in Advertising Act should only take place if the FTC finds some degree of

health issues caused by the promotion of images overusing Photoshop. From the perspective of

the consumers viewing digitally altered photographs, the regulation of advertising practices is

ethical according to rights theory.

Moral Relativism
Supporters of this ethical theory believe ethical statements are true or false depending on the

standard applied (Dreier, 2006, p. 240). When faced with a dilemma, moral relativists seek the

most ethical answer appropriate for the situation. For example, Catholic moralists would suggest

different actions are ethical than Confucian moralists (p.240). Because of the loose structure of
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this ethical theory, legislative action against digitally altered advertisements as ethical or

unethical depend on the perspective.

From the perspective of the business owner or advertiser, the legislative action is unethical

according to moral relativism, especially in the fashion industry. Companies use Photoshop to

enhance their advertisements in order to display products from an aspirational point of view. The

controversial advertisements that appear to be unrealistic have an artistic angle, and companies

want to display their products in the best possible context. The advertiser would find legislative

restrictions on the enhancement of the products surrounding context to be unethical under this

theory.
However, the parents of young girls would find the most ethical decision to be legislative

action according to moral relativism. With the rise of eating disorders and self-hate in young

women, parents most likely would want to put an end to digitally altered photographs past

human capability. The National Institute of Media and the Family found that 53 percent of 13-

year-old-girls are dissatisfied with their bodies and that the number jumps to 78 percent by

age seventeen (Cunningham, 2014, para. 10). The study also found that 30 percent of high

school girls suffer from an eating disorder (para. 10). If the FTC finds a direct correlation

between eating disorders and fashion advertisements, submitting legislation of advertising

practices would be the ethical decision based on moral relativism.

Virtue Ethics
Virtue ethics is different from the other theories in that it refers to desire, and actions that

reflect the desires a person wants to achieve (Devettere, 2002, p. 13). Dating back to Greek

philosophers Plato and Aristotle, the virtue ethics approach also provides different answers

depending on the pursued virtue. If Congress desired virtues of creativity and fairness, Plato may

find the decision to regulate advertising to be unethical, since it would prohibit creative freedom

for businesses advertising their products. Lawmakers seeking virtues of honesty and truth would
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find the legislative action to be ethical, however, because of the emphasis on reducing deceit in

commercial activities.
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Recommendations

The new legislation proposed is mostly a starting point for advertising legislation in the

digital age. While there is no serious ethical dilemma in passing the Truth in Advertising Act of

2016, the problem becomes relevant if the FTC finds evidence concerning the correlation

between current advertising practices and mental health issues. After the reports are made, the

decision to keep regulating advertising is attached to many ethical questions of how far is too far

for productive business activities.

Many clothing stores are already implementing an anti-Photoshop marketing strategy,

and they are finding it beneficial to their brand image. One lingerie brand is changing the way

the industry views advertising. Aerie has experienced a 20 percent increase in sales for the fiscal

year (Schlossberg, 2016). The brand decided to nix Photoshop altogether in 2014 and has only

benefited from the decision (Schlossberg, 2016, para. 7). Modcloth, another clothing brand that

has taken particular interest in the Truth in Advertising Act by lobbying for the bill, has also

vowed not to use Photoshop for its advertising (Chapin, 2016; Oliver, 2015). Seventeen

Magazine, a publication geared specifically toward teen girls, stopped using Photoshop for

altering models bodies and complexions in 2012 after 14-year-old Julia Bluhm organized a

petition with over 84,000 signatures (Oliver, 2015, para. 13). These brands have taken the

necessary steps toward honesty in visual commercial advertising. From the success rates of these

organizations, the best option for companies in the fashion industry might be to self-regulate, as

it is a cheaper and easier option than government regulation. The decision to pass the Truth in

Advertising Act in order to gain factual reports from the FTC is a smart choice. However,

providing incentives to companies who self-regulate their use Photoshop might solve this

dilemma most effectively.

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