The British Advertising Standards Authority has taken action to ban a Christian Dior mascara ad featuring Natalie Portman. The ad portrays results that cannot be achieved by use of the product. The agency ruling noted that Dior called the ad portrayal as "aspirational," admitting the lashes were re-touched after the photo shoot. In the US, the FDA and the FTC have periodically taken action against cosmetics advertisers. But in this case, no complaint has been made.The British regulatory action followed a complaint by a competitor. In the US, apparently, no one wants to "throw the first stone."
The Cover Girl ad featuring Taylor Swift, below, was pulled after the National Advertising Division of the Better Business Bureaus found it to be misleading. The Government didn't even have to get involved here. Of course, the case was easily made since the ad's small print stated, "Lashes enhanced in post production."
A picture of a frog with the second of its four unwebbed "fingers" extended in a manner evocative of a well known human gesture of insult has presented this Court with significant issues concerning First Amendment protections for commercial speech. The frog appears on labels that Bad Frog Brewery, Inc. ("Bad Frog") sought permission to use on bottles of its beer products. The New York State Liquor Authority ("NYSLA" or "the Authority") denied Bad Frog's application.
fn 1. The gesture, also sometimes referred to as "flipping the bird," seeNew Dictionary of American Slang 133, 141 (1986), is acknowledged by Bad Frog to convey, among other things, the message "f**k you." The District Court found that the gesture "connotes a patently offensive suggestion," presumably a suggestion to having intercourse with one's self.
The court applied the Intemediate Scrutiny test applicable to Commercial Speech cases as determined by the Central Hudson case. The question for the state, then, is "What is your substantial governmental interest in prohibiting this label?" The state of New York says that it has a substantial interest in protecting children from exposure to vulgarity.
If those are appropriate ends, then what are the means that New York has chosen to protect children from vulgairty? New York responds that the way it has chosen to protect children from vulgarity is to ban the friggin' frog label. Does this action directly advance the stated substantial governmental interest?
Hardly.
Our point is that a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity.
Therefore, the state's interference with Bad Frog's commercial speech is an unconstitutional infringement.
The Bad Frog label:
Connecticut had a similar problem when it banned the use of Seriously Bad Elf beer's label on the grounds that it appealed to children. Connecticut relented when Bad Elf threatened suit.
The Law Info You Tube channel has a plethora of short (around 1:00) videos that are great for introducing legal topics or defining terms. I find that students can zone out on my voice. Sure, I can define a promissory note or briefly introduce the concept of employment discrimination, but having another face/voice do it gives an opportunity to have students close laptops to look up at a video and lends credibility to what I have to say (since the video lawyer agrees). Below are some examples:
Click on the image below to see a video on Promissory Notes:
Click on the image below to see a video on Commercial Speech:
Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act. Monson grew her own marijuana. Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis: "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."
1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power. "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?
2. Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power. All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."
In 2009, Ralph Lauren fired supermodel Filipa Hamilton claiming that at 5'10'' and 120 lbs, she was too overweight to represent the fashion line. Yet, Lauren continued to use her severly photoshopped image (below) where her waist appears to be about 10" around and her hips are smaller than her head. Is it false and deceptive advertising to visually portray the human body in this severly altered state without a disclaimer?
