Morality and Advertising

As you walk down the street, a sign catches your eye. “Happy Hour” is written in neon lights, “$3 martinis.” You find the advertisement enticing, but why? If you decide to enter the bar, will you really experience a “Happy Hour” as the sign promises? If you buy the martini and do not experience an hour of happiness, has the advertisement deceived you?

Advertisements constantly send us messages about what we should think and how we should feel and act. These messages dictate not only our purchases but also our psychological processes. But how often are we cognizant of these advertisements and the illustrious promises they make? And if we are aware, do we challenge them? In the most benign scenario, a misleading advertisement can lead to the unnecessary purchase of a useless trinket. At worse, advertisements can perpetuate the neurosis of instant gratification and consumerism, leading to unfulfilled promises of intangible qualities like happiness, security, friendships, and meaning. In this article, I will examine the morality of the psychological effect that advertising has and how it is addressed in American and Jewish law.

The Power of Association

Advertisements employ associative properties to make their products instantly desirable. For example, a Bud Light advertisement portrays a studly beach goer drinking a Bud Light while attractive young women in bikinis flock around him. After watching this commercial for Bud Light, the consumer is more likely to associate Bud Light with sex appeal. But, as the research of Creighton University professor Andrew Gustafson highlights, when the typical beer aficionado buys a Bud Light, he is less likely to attract a gaggle of girls in bikinis, and more likely to acquire a beer belly.[i] Advertisements use these associations to manipulate the buyer’s psyche.

By associating a certain product or brand with positive attributes, like fame, fortune, success, sex, happiness, and friendship, the buyer comes to believe that these attributes will manifest themselves through his purchase. But no bottle of shampoo can fulfill these illustrious promises. However, many buyers are unaware of the danger in these associative tactics. It is because of this lack of awareness that they are drawn to certain products over others, or to enter a bar during Happy Hour. Advertising is inexorably deceptive.

Buyer Beware (I’m shaping your subconscious!)

Advertisements are invasive by nature, partly because they are ubiquitous, but mostly because they manipulate our psyches without our being aware of their effects. Andrew Gustafson addresses advertising’s moral nature and how it greatly influences societies’ inclinations, habits, and desires. Gustafson’s research is not concerned with what he calls “truth in advertising,”[ii] namely issues of puffery and disclosure, etc., but, rather, he is concerned with the way in which advertising molds society’s character. While Gustafson believes in the power of advertisement to shape our society’s desires, other philosophers like Harvard economist Theodore Levitt argue that advertisement is simply reflective of society’s pre-existing desires. Levitt would therefore take issue with Gustafson’s contention that advertisers have a moral responsibility in shaping society’s character.[iii]

Do Jewish values share Gustafson’s belief in the responsibility of advertisers? Brooklyn College professor Hershey Friedman agrees with Gustafson and maintains that advertising does play a role in shaping society. Friedman proposes that Jewish law may not explicitly prohibit or restrict manipulating the psyches of consumers to create detrimental desires, but insists that such practices clearly violate the spirit of the law.[iv]

Gustafson questions whether the sentiment of “buyer beware” is a sufficiently moral policy to apply in the realm of advertising. This dictum assumes that the buyer is purchasing at his own risk and is aware of his own liability in purchasing. The buyer is at his own discretion in the marketplace, and if he makes a bad purchase due to false advertisement, this is his own fault. Gustafson challenges this idea because of two factors that both work against the buyer: “truth in advertisement,” that advertisements accurately portray the product, and the potential psychological damage that the advertisements can have on the consumer. The buyer is not only lured into purchasing an exaggerated product because of deceptive advertising, but he is also mentally manipulated by the advertisement’s subtle insinuations.

For example, perhaps the advertisers who use abnormally thin female models in their advertisements should consider the potential psychological implications that their ads may have on young impressionable females. After being exposed to this type of advertisement, girls may assume that abnormally thin is society’s standard of beauty. As a result, many girls may develop body image issues, which could lead to unhealthy eating habits. They may starve themselves just to look like the emaciated stick figure portrayed in advertisements.[v] In light of this, we can see how Gustafson maintains that advertisement deeply affects society’s psyche, and, therefore, the advertiser is responsible for the psychological effects of the advertisement. The buyer is in no way accountable and, rather, is seen as a victim of this manipulation.[vi] Thus, because of these two factors, truth in advertisement and the potentially harmful psychological effects of advertising on the consumer, Gustafson sees inequity in the dictum of “buyer beware” and maintains that it is not the fault of the consumer.

In contrast, Kim Rotzoll, James Haefner, and Charles Sandage maintain that society should be clever enough to see through deceptive advertising. They argue, “Under the assumption that man is rational, it is quite appropriate to attempt to persuade. …”[vii] Under this assumption that society is comprised of rational men, Rotzol, Haefner, and Sandage shift the responsibility of forming good moral character away from advertisers and onto consumers, who, they believe, should be able to discern fraudulent advertising.

Reasonable-Man Standard

According to American law prior to 1914, the criteria for honest advertisement were based on the reasonable-man standard that states that the advertiser is not liable for any ambiguity or deception that a reasonable man would see through. The Federal Trade Commission (FTC) then instituted even stricter regulations on advertisers to prevent misleading advertisements altogether. The FTC aimed not only to protect the reasonable man, but also attempted to protect everyone in the marketplace, even the most credulous buyer. For example, Clairol was not allowed to advertise its hair dye as dye that would “color hair permanently.” The courts ruled that this advertisement may lead people to believe that their hair would grow out in the color of the Clairol hair dye that they used. This seems like a ludicrous assumption to any reasonable person, but that was exactly the point—the FTC wanted to protect even the most gullible and unsuspecting consumer. [viii]

Heinz W. Kirchner appealed against this extreme ruling. From his appeal emerged a “modified reasonable-man standard.”[ix] R. Aaron Levine, who was chairman of the economics department at Yeshiva University and published articles on Torah and economics in leading journals of Jewish thought, explains that this new standard “equated the reasonable person with the typical or average person as actually observed in the market-place.”[x] As a result of Kirchner’s appeal, the legal system balanced the consumer’s need for protection and the advertiser’s need for creativity and business suave. Perhaps this “modified reasonable man-standard” acknowledges that advertising innately possesses some deceptive quality but that banning it completely would cause major economic distress.[xi]

Advertising in the Context of Halakhah

According to Jewish Law, how careful must an advertiser be when protecting the consumer? Does Halakhah require an advertisement, as in the case of Clairol, to be so explicit that even the most naïve consumer not be misled? As stated earlier, these issues are more concerned with the spirit of Jewish Law, rather than the letter, but before understanding the former, the latter must be addressed.

The prohibition of geneivat da’at, commonly translated as “stealing knowledge,” is a halakhah understood to relate to that which creates a false impression. It is this halakhah that lays the foundation for the obligation of advertisers. The biblical source for geneivat da’at is disputed by various sages. R. Jonah b. Abraham Gerondi (Spain, ca. 1200-1264) determines that such behavior on the part of the advertiser is equal to the prohibition of falsehood, sheker (Shemot 23:7). However, R. Yom Tov Ishbili (Spain, ca. 1250-1330) considers geneivat da’at an act of theft (Vayikra 19:11); he equates stealing knowledge to stealing physical property.[xii] Regardless of the biblical source of geneivat da’at, however, it is clear that outright lying is not acceptable according to Jewish law, but a prohibition against deception through ambiguous statements is not as obvious.

A story in Hullin 94b illustrates this point. The local butchers of a certain town received a shipment of non-kosher meat. Surprisingly, the Talmud did not require the butchers to refer to the meat as tereifeta, a term with a negative connotation, and rather allowed the butchers to refer to the meat as bisra, a term with a neutral connotation. Both expressions accurately describe the type of meat as non-kosher, but the latter expression of bisra is slightly more neutral and less descriptive. The Talmud ruled that it was permissible to refer to the meat as bisra as opposed to tereifeta to conjure a more positive image of the meat in the public’s mind, in order to protect the local butcher’s business. Had the more negative term been used, his business would have suffered. Similar to American law, Jewish law values the delicate balance between protecting the consumer through honest advertising while simultaneously recognizing the needs of the business world.

Going Beyond the Letter of the Law (Lifenim me-Shurat ha-Din)

Although the Talmud rules that referring to the meat as Nafla Bisra is permissible despite it not being the most forthcoming description, there are various other sources that strongly suggest that any type of psychological manipulation is contrary to Jewish values. In II Shemuel 15:6 it says that David ha-Melekh’s rebellious and narcissistic son Avshalom, “stole the hearts of the people,” promising that under his rule the populace would enjoy a certain quality of life that he could not really provide. Advertisements operate in a similar way. Advertisements “steal” the hearts of consumers, and promise them a quality of life that no product can supply. For example, Virginia Slims promises liberation with a pack of cigarettes by associating the cigarettes with the liberated women on their ad campaign.[xiii] Ironically, a purchase of Virginia Slims cigarettes is more likely to lead to the buyer’s addiction than to his liberation. Countless advertisements promise a quality or life that, in reality, their products cannot follow through on.

Furthermore, Friedman suggests that advertising’s aim to create desires and jealousy may be in conflict with the tenth commandment, which deals with the prohibition of coveting (Devarim 5:18). He then cites Ramban’s concept of “a vile person within the permissible realm of Torah.” One can still exhibit “vile” qualities without breaking any explicit halakhot. [xiv] Friedman asserts that one must go beyond the letter of the law, and conduct one’s business in a way that reflects Jewish ethics or, as he puts it, “the way of the pious.”[xv]

There may not be any absolute halakhic proof, but it would seem from these various sources and teachings that the spirit of the law does not allow for advertisers to create desires, perpetuate instant gratification, and dupe buyers into believing that love, success, and happiness can be bought. Jewish ethics teaches that we have to be sensitive to the kind of society that we want to create. Advertisers should aim to sell useful products, create positive desires, and instill good values in society to the best of their ability.

Nora Ellison is a senior at SCW majoring in