Category: Advertising

2

Appropriating “Organic”

It appears that the titans of the food industry are having their way with the USDA and the feds may soon approve a list of 38 non-organic items that may be included in foods marked “organic.” All of this interesting regulatory play is inidicative of the fact that organic foods finally hit the big time, and thus became worth of Big Food’s attention. We see a several different things happening here.

1. The public is becoming more concerned about the contents of its foodstuffs.

2. With more interest in organic food, Big Food decides to buy into to the industry.

3. Once bought in to the industry, making money off of the public’s (perhaps legitimate) fear of the current foodsupply (that Big Food created and aggressively markets), industry immediately sought to make organic foods cheaper, more attractive, or tastier (or perhaps all three) by adding non-organic ingredients.

4. With its meaning diluted (and I’m not taking a position on whether this dilution is meaningful – whether these 38 ingredients make items more or less healthy), the term organic may slowly lose its value as an indicator that a food product is distinctively more natural.

5. This will open new opportunities for creative small food marketers to create new language signifying the concept that “organic” once conveyed.

In the end, Big Food is simply doing with “organic” what it does with so many of the food products it markets: taking the underlying item (usually things like wheat, but in this case the word organic), processing it until it is a first cousin to its natural state, and serving up this not-quite-real but plenty alluring product to a waiting public.

Is this an example of markets working? Or of the vices of regulation? I’ll leave that question for people who actually spend money on this stuff. And I’ll have a Snickers and a Coke.

4

Politics, Private Space, and Total Persuasion

persuasion.jpg

A lunch today with a colleague at another school, coupled with an article in the Wall Street Journal, has brought me to back to a topic I blogged about back in January: Total Persuasion. As I suggested, there are analogies to be drawn between the government’s defunct secret possibly ongoing program to gather reams of information about its citizens and corporations’ desire to grab consumer mind-share by every persuasive avenue possible. Indeed, we’re rapidly approaching a time when it will be exceedingly difficult for the law to draw lines between advertising and not-advertising; between fraud and persuasion; and between censorship and consumer protection.

These claims are easy to overdraw, so let me give you an example and a theory to help set the stage for the discussion. In today’s Journal, John McKinnon has a interesting article about Sara Taylor’s decision to leave her job as the White House’s political director to join the private sector. Taylor is an expert in microtargeting, a marketing technique developed by corporations to segment their consumer markets by mining data to learn more about the structure of consumer’s preferences. According to McKinnon, microtargeting was “honed” by political operations to “more effectively zero in on voters’ emotion triggers,” and uncover groups of voters that are susceptible to future efforts. Taylor sees a “big future” for taking such political lessons back to the corporate world by “helping corporations focus on potential customers’ . . . feelings about buying a product or service.”

There are some roadblocks in this prosperous path, as the article points out. Most salient, businesses are “more constrained in the claims they can make” than politicians, presumably by the law of fraud (in its various guises). But there is a solution to this problem: encourage consumers to make their own persuasive advertising by creating “social networks around products and brands . . .” In the future, we should anticipate that such social persuasion will become an increasingly prevalent aspect of corporate marketing efforts, just as politicians have worked to co-opt social networking sites for their own ends.

Why? Because consumers have fewer defenses to social persuasion, and aren’t cynical about it yet. Moreover, social persuasion is probably less subject to legal sanction in the general case (indeed, it may be immune under circumstances where the same language if spoken by the corporation would be actionable). It is also, obviously, cheaper to produce. The downside (loss of control over message) is probably something that corporations will learn to live with. (I thank my lunch companion for pointing this problem out to me!)

What’s wrong with a society in which most speech that you hear is designed to persuade you to consume? When framed that way, some might immediately respond: nothing! After all, no one is being compelled to any particular purchase. If the consumer market is efficient, and consumers had a taste not to consume, wouldn’t savvy marketers satisfy the taste with a unpersuasive campaign? (The idea is silly on its face, but isn’t it sort of what Saturn and Berkshire Hathaway were/are up to?) Even assuming that the consumer product market is somehow irrational, marketers would presumably compete to satisfy whatever inefficient desires are extant.

But I doubt that market rhetoric is going to provide satisfying answers to whether the law should work to hinder a total persuasion society. I haven’t fully thought this issue through, but my starting point is an essay by Jonathan Franzen called Imperial Bedroom, in his book How to Be Alone. Franzen attacks privacy advocates for focusing on privacy as just problem of being from free from others’ (corporations, the government, space aliens, the U.N., etc.) prying eyes and grasping hands.

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2

Stanford and Cal Cooperate over Big Game

As a loyal Stanford alum, I don’t think I ever thought I’d see the day where Stanford and Cal would link arms over The Big Game. Thank goodness for the NFL, which has applied for a trademark on “The Big Game,” a title that has been applied for many decades to the annual football game between Stanford and Cal.

I’m hardly the first to think that the NFL’s behavior is ill-advised and heavy handed. A quick Google search turns up blog after blog making fun of the NFL’s behavior. That having been said, I’m curious…..Is there anyone other than NFL counsel who’s out there supporting this behavior or the asked-for result?

The NFL’s explanation is that they want to stop people from piggy-backing on the goodwill of the Super Bowl — you know, selling TV’s for “your big Super Bowl party.” In the story linked to above, the NFL says it sells sponsorship rights to Samsung, and suggests that the value of those rights would dissipate if they didn’t get the trademark. I’m a little surprised that someone isn’t defending this outcome as “correct” because it allows internalization of all social value from the Super Bowl to the NFL, thereby giving the NFL the proper market signal to invest in putting on its annual extravaganza. Perhaps I’ve missed it? Heaven knows I don’t read the whole blogosphere. Or, has the NFL taken us past the limits of the “internalize all externalities” policy?

4

Best and Worst Internet Laws

[Preface: I’ve already overstayed my guest visit, but before I go, I want to say thanks to the Concurring Opinions team for the opportunity to blog here, and thanks to all of you for the great comments and stimulating dialogue. A complete index of my guest blog posts. Meanwhile, I’ll keep blogging on technology and marketing law at my main blog and on all other topics at my personal blog. Hope to see you there!]

Over the past dozen years, the lure of regulating the Internet has proven irresistible to legislators. For example, in the 109th Congress, almost 1,100 introduced bills referenced the word “Internet.” This legislative activity doesn’t always come to fruition. Still, in total, hundreds of Internet laws have been passed by Congress and the states. This body of work is now large enough that we can identify some winners and losers. So in the spirit of good fun, I offer an opinionated list of my personal votes for the best and worst Internet statutes in the United States.

[Keep reading for the list]

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Thoughts on Marketing

Inspired by Ellen Goodman’s fascinating article on “Stealth Marketing,” here are two random thoughts on ads and such during this frenetic shopping season.

First, from the Economist, on the relevance of postmodern theory to modern business:

Modern retailers are only just getting to grips with two of the consequences of the breakdown of authority and hierarchy that [pomo theorists] hoped for half a century ago: the “fragmentation” of narratives and the individual’s ability to be “the artist of his own life”. Modern business uses a different language to discuss the same ideas. In “The Long Tail”, an analysis of the impact of the internet on the music industry, with wider ramifications, Chris Anderson describes the “shattering of the mainstream into a zillion different cultural shards”. The post-modern “fragment” becomes a “niche” and the mass market is “turning into a mass of niches”.

This is a bit abstract, but I highly recommend reading Clotaire Rapaille’s The Culture Code to see how it works in action. Rapaille uses extremely simple narratives to get at the subconscious wellsprings of consumer behavior.

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Scentvertising, Bubbles, and the Battle for Mindshare

colonel.jpgI serendipitously encountered two bellwethers of commercial culture today. The WaPo looks at retailers’ increasing use of fragrances to enhance consumers’ moods. Is this effort to get people in a buying mood a bit like subliminal advertising? Some unexpected nuisance issues arise:

The American Lung Association has received several complaints about scented stores, spokeswoman Janice Nolen said. The fragrances have triggered flare-ups for asthma sufferers and those sensitive to certain chemicals. “I don’t want to sound like the Grinch,” Nolen said, but “sometimes these fragrances can be a barrier to people.” Evelyn Idelson . . . is one of them. She first noticed that her laundry detergent was scented. Then her dishwashing liquid. Now, she said, everything smells. “I can’t stand it,” she said. “I think it’s an invasion of personal space.”

The California Milk Processor Board has responded to such complaints, removing ads that smelled like cookies. “Taunting [the obese] with the smell of off-limits cookies was just cruel, they said.” Given the parlous state of many Americans’ finances, perhaps Debtors’ Anonymous should launch a similar campaign for all luxury goods.

But then again, we’d never say the same thing about images of products, would we? Perhaps it turns out that scent is more visceral than sight:

“You smell a rose, and your brain doesn’t go, R-O-S-E,” said Charles S. Zuker, a researcher with the Howard Hughes Medical Institute. “Your brain recalls what a rose is like.” Daniel Lieberman, an associate professor of psychiatry at George Washington University, called smell the most “primitive” of the senses. Odor receptors in the nose are actually brain cells, he said.

So I suppose scent is in a category of its own.

But for those frustrated with all-pervasive commercial culture, there is another alternative: self help. Harvard’s Berkman center recently had a panel on “culture jamming,” including many leaders in cyberactivism. I was intrigued by Ji Lee’s bubble project, which encourages renegade “taggers” to scrawl commentary, in bubbles, on ads:

Our communal spaces are being overrun with ads. . . . Once considered “public,” these spaces are increasingly being seized by corporations. . . . Armed with heavy budgets, their marketing tactics are becoming more and more aggressive and manipulative. The Bubble Project is the counterattack. . . . Once placed on ads, these stickers transfom the corporate monologue into an open dialogue.

I suppose many will deem the Bubble Project illegal art, or mere graffiti, and may even think Ji guilty of inducing copyright infringement. But I think it’s worthwhile hearing his side of the story, and thinking about the ways in which ordinary citizens can try to avoid (or undermine) a barrage of commercial messages. As Hannibal Travis notes, there is a “battle for mindshare,” whether we like it or not.

PS: This is a very interesting disclaimer from the FAQs of the Bubble Project:

Q: Is it legal to place bubbles on top of ads?

A: No, it’s illegal. It’s consider[ed] vandalism to deface any public or private message. If you are caught, you may be subject for fines and even get arrested. You figure it out on your own. I’m not responsible for your actions.

Art Credit: Aric Obrosey, The Symbolic Lotus of a Thousand Colonels [Sanders]

12

When Will Skadden Finally Get Its Own Stadium?

I love that the Utah Jazz has sold their stadium naming rights to Energy Solutions, a nuclear waste storage company. The Times reports a series of great nicknames that savvy Salt Lake sportos have suggested for the facility. The Tox Box. The Glow Bowl. The JazzMat. And of course, my own personal favorite, Radium Stadium.

We have become so accustomed to commercialization of just about everything that this story, while humorous, is entirely plausible. And that’s lucky, because it’s true. I wonder if a stadium naming opportunity can be created for any legit company in America. How about Jack Daniels Stadium or the Marlboro Center? (If these names don’t play in Utah, perhaps they’d work in a place like Chicago.) Perhaps Howard Dean should have ponied up some cash and taunted Jazz fans by renaming the place Democratic National Party Hall. (Would locals derisviely call it the Dean Dome? And if t-shirt makers emblazoned souveniers with the motto, could Carolinians sue?)

Which all leads nowhere, except to ponder whether law firms will ever get into the biz. Surely Skadden, Arps would benefit from having the firm’s name surface regularly on NBA-TV and ESPN. I’m convinced there are some great nicknames a law-firm-titled stadium could generate, but for now I’m somewhat stumped. MoFoField just doesn’t knock my socks off. Anyone have suggestions?

3

Discount Caskets Online? Shop Costco!

casket2.jpgI was feeling in a shopping sort of way this afternoon when I wandered over to Costco.com. There I discovered what others may have long known: the big box discount house sells caskets. What a lift for the spirits! The funeral business has always been notorious for its attractive business environment. Who wants to shop around for the best funeral value? And who wants to be seen as skimping on cheapo casket for a dead loved one? As a consequence, the industry hasn’t been subject to widespread discounting. (But see this.) And now, with the rise of the funeral home chain, the marketplace is amazingly seeing an INCREASE in funeral prices. Yet this situation clearly creates opportunities for entrepreneurs willing to take on the taboo and sell their product based on price (rather than, say, Dignity.) Somehow, I never saw Costco as such a niche player. Clearly, I was naive!

This discovery has led me to ponder a number of questions.

Do people skimp more on the box when they’re buying on the web, in the absence of sales pressure? Or do they buy fancier caskets because they’re more affordable? And who exactly skips overnight delivery, preferring to get their casket via “standard shipping”? (Do some people prepare for the big day, sticking the casket in the garage until it becomes necessary?)

How many people join Costco for the sole purpose of a buying a casket? Maybe Costco doesn’t even try to make money on this segment. Like discounted plasma TV’s and cases of Bounty, perhaps it’s just a loss leader, a way to drive business to the site.

“I came for the casket, but I stayed for digital videocamera.” Or something like that.

0

Gmail’s Stunned Silence About Child Molestation

After reading Belle Lettre’s interesting critique of Gmail’s email advertising, I decided to do a little IRB-unauthorized research on my own email collection. I figured I’d look at recent messages sent to my Gmail account and see what curious ads popped up. But I found something even more intriguing. A whole category of emails met with silence. Gmail either couldn’t, or perhaps wouldn’t, match me with a single advertiser for this group of missives.

Regular readers may have noticed my recent post on the subject of child porn and sex offender notification laws. Some might say I’m “a child porn apologist“, but I prefer to see myself less dramatically as a skeptical crim law commentator. In any case, the post generated some active discussion in the comments. I receive an email (to my Gmail account) notifying me each time a comment has been added to one of my posts, and these notices include the full text of the comments. It turns out, that – unlike pretty much every other piece of email I’ve received recently – each of the emails containing comments to this child pornography/sexuality post came with absolutely no ads running along the side.

I am quite certain that there are advertisers who’d love to approach someone emailing about child pornography and the like. Some are obvious problem advertisiers – child porn distributors. But what about religious groups trying to reach out to addicts? And what about anti-molestation advocates who do their fundraising on the web? I discovered both of the prior links as advertising to Google searches like “stop molestation” and “fight pornography addiction.” These groups do advertise with Google. Perhaps our exact terms weren’t enticing to these advertisers. Or perhaps the Gmail advertising algorithm exludes advertising based on these terms. Personally, I was hoping for one of those quirky connection ads – like when I got a comment on my Judge Luttig resignation post that said “Was Luttig the jurist using his position on the Circuit Judicial Council to cover up a felony conspiracy of a District Court judge?” And Gmail reponded with an ad for the myspace page of Gil “The Crab.”