SIGNS IN SOCIETY - STIBA Malang
SIGNS IN SOCIETY - STIBA Malang
SIGNS IN SOCIETY - STIBA Malang
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148 I Comparative Perspectives on Complex Semiotic Processes<br />
dividual consumers to the same degree as its mandate to insure free competition<br />
among commercial interests. In a sequence of cases after 1938 puffery continued<br />
to be be defined as "an expression of opinion not made as a representation of<br />
fact" (Gulf Oil, 150 Fzd 106 [1945]), which "it is . . . hard to imagine anyone<br />
reading it could have understood it as more than puffing" (Moretrench, 127 F 2d<br />
792 [1942]). Excluded from this category were all direct false representations<br />
that assign to products "benefits or virtues they do not possess," or that are made<br />
for theptupbse: of deceiving prospective purchasers (Steelco, 187 Fzd 693<br />
[i95i))TÄccepted were ads stating, for example, that a motor oil additive would<br />
enable a car to operate an "amazing distance" without oil (Kidder, 117 F2d 892<br />
[1941]), or that a vitamin-candy was an "easy" method for weight reduction<br />
(Carlay, 153 F2d 493 [1946]), or that Ipana toothpaste will "beautify the smile<br />
and brighten and whiten the teeth" (Bristol-Myers Co., 46 FTC 162). In this last<br />
case the FTC stated: "The Commission was of the opinion that the referencejtp<br />
beautifiçation of the smile was mere puffery^ unlikely, because pf ^generality/'<br />
1 and ^jdely variant meanTngsJf to deceive "anyone factually."<br />
,h,f* Although" mo^sTTiFtKese cases focused on the fine line between exaggerated<br />
x<br />
/opinion and false factualjepresentation, several hinged on the question of the<br />
' \ simultane^a^metapragmatic message In Pfiz fizer (81 FTC 23 [1972]), for exam-<br />
0 (jy^kTfKe maferTof a sunburn crearn argued that their product claims (e.g., "actually<br />
anesthetizes nerves" and "relieves pain fast"), while looking like factual,<br />
even medical claims, were merely puffs\ since the metamess^ge included, among<br />
other things, "me frivolous M^ure of the dialogue," "the"*use of a bikinied<br />
model," and the\general "aura of sexiness." Together, the company insisted,<br />
these constituted a-Aotal semng_ofjlje ad" which provided a clear interpretive<br />
signal that statements in the linguistic form of verifiable medical claims should<br />
be understood as mere puffery. The FTC, on the other hand, ruled that this context<br />
was counteracted by the use of "scieritmcovsrtones," implying that the product<br />
claims were substantiated by "well-controlled scientific studies" (the mention<br />
of "doctors" and the adverb "actually") and that the ads were more than<br />
"harmless hyperbole."<br />
Cross-cutting the increasing regulatory activity of the FTC were two Supreme<br />
Court rulings of 1975 and 1976 which transformed the constitutional<br />
context of advertising regulation by extending limited First Amendment protection<br />
to commercial speech. Previously, in 1942 the Supreme Court held in Valentine<br />
v. Chrestensen (316 U.S. 52) that an ordinance prohibiting the distribution<br />
of handbills containing on one side commercial advertising and on the other<br />
side noncommercial messages of political protest was not in violation of the First<br />
Amendment. The constitutional protection of speech is based on the communication<br />
of information and opinion necessary to the free flow of ideas in a democracy.<br />
The political message on the handbill, the Court ruled, was added with the<br />
The Semiotic Regimentation of Social Life I 149<br />
intent to evade the prohibition of the city ordinance. The Court, citing no historical<br />
prededent, stated in conclusion:<br />
This Court has unequivocally held that the streets are proper places for the<br />
exercise of the freedom of communicating information and disseminating opinion<br />
and that, though the states and municipalities may appropriately regulate<br />
the privilege in the public interest, they may not unduly burden or prescribe its<br />
employment in these public thoroughfares. We are equally clear that the Constitution<br />
imposes no such restraint on government as respects purely commercial<br />
advertising. (Cited in Rome and Roberts 1985:19)<br />
Commercial speech, in this view, is a form of business activity whose jgoal is the<br />
generation 'of profit rather than the exchange'of ideas.<br />
InTt^7^TKowëi^'trîS"' sharp differentiation between protected and unprotected<br />
speech was eradicated when the Court ruled in Bigelow v. Virginia (421<br />
U.S. 809) that advertising geared to commercial interest "is not stripped of First<br />
Amendment protection merely because it appears in that form." This case involved<br />
an advertisment in a Virginia newspaper for the Woman's Pavillion of<br />
New York City, an organization for the placement of women desiring abortions.<br />
Since abortions, though legal in New York, were illegal in Virginia, the Supreme<br />
Court of Virginia ruled that the ad was in violation of state law. In overturning<br />
the state's decision, the Supreme Court noted the handbill, though proposing a<br />
commercial transaction, also contained "factual material of clear 'public interest.'"<br />
The Court did not, however, prohibit "reasonable regulation" of advertising,<br />
since commercial speech is after all a business activity and as such subject<br />
to regulation that serves a legitimate public interest. Rather, the intent of the<br />
Court was to recognize the compkxjiaturejrf corrjmejdaLspeech. as being simultaneously<br />
the expression of a business interest and the communication ofyaluable<br />
information. As Justice Blackmun put it: "The relationship of speech to the marketplace<br />
of products or of services does not make it valueless in the^marketplace<br />
of ideas."<br />
Both the Supreme Court and the FTC, I think, contribute to the same ideology<br />
that stresses the informational or referential function of advertising. Now,<br />
to be sure, both bodies well understand that advertising is a form of persuasive,<br />
that is, biased, commjirùçatîoî), but the social effect of their decisions is to reinforce<br />
an interpretive standard according try which advertising, so far as the public<br />
interest and constltütloTrat protection is concerned, iPinformational. This standard<br />
is at the basis of the Supreme Court's extension of First Amendment protection—since<br />
advertising is protected only to the degree that it is factual, that<br />
is, non-deceptive, in a truth-functional sense—as well as the FTC's decisions—<br />
since the agency's mandate is to be sure that consumers can rely on the information<br />
communicated in making market decisions.