Safely EmbeddedDespite complaints, FTC and FCC are unlikely to rule on product placement issue 10/24/2004 08:00:00 PM Eastern
A scenario for some future episode of Survivor: Contestants grunt their way through an immunity challenge, the camera lovingly dwells on their trusty Reeboks, and—ping!—a graphic pops up saying, "ADVERTISEMENT." That's the dream of Commercial Alert.
The ad-busting organization filed complaints a year ago with the Federal Communications Commission and the Federal Trade Commission demanding that programs clearly label the product placements and commercial embeds now flourishing on television. Given the glacial pace of the bureaucratic machinery in Washington, speculation has begun in earnest over how agencies might respond.
While some in the product-placement business worry about the possibility of new restrictions, hints from government agencies suggest that they can rest easy. The blink-and-you-missed-it disclosure of commercial tie-ins as the closing credits run may continue to be TV's way of dealing with the issue.
Steve Rasnick, vice president of UPP Entertainment Marketing in Los Angeles, calls the Commercial Alert complaints "absurd," but he doesn't assume the government will share his skepticism. "They have the audacity to go after Howard Stern. If they're that loony, they could do anything." And Chicago marketer Kathryn Thomas, recently of Starcom Entertainment, is "quite concerned" about a possible clampdown by the FTC or FCC on the Wild West atmosphere that has enveloped the product-placement business in recent years, particularly since the advent of advertiser-sticky reality shows, such as Survivor
and The Apprentice.
Rasnick says the logistics of sorting out which product placements to flag for viewers would be mind-bending; there are countless ways a certain brand of bottled water might appear on a show. Choosing Evian over Poland Spring could be the whim of a prop master, a cost-free coup by a shrewd marketer, a bone thrown to an advertiser in reward for buying time, or an outright placement by one of the show's underwriters. "What difference does it make to viewers?" he asks.
It might make a big difference if audiences realized what they were seeing, contends Commercial Alert. Product placement "is deceptive because it flies under the viewer's skeptical radar," the group's FTC complaint charges. Product imagery and script write-ins can be so subtle, the complaint says, that viewers fail to identify them as a veiled commercial.
Although a ruling isn't expected until year's end, Gary Ruskin, who co-founded Commercial Alert with Ralph Nader in 1998, sounds confident about a favorable response from the government: "We think the law is on our side." His hopes are buttressed by the group's success two years ago in persuading the FTC to issue guidelines to prevent Internet search engines from presenting ads masked as legitimate search results.
But that ruling may not be the precedent used by the FTC when evaluating Commercial Alert's claims now.
"When the commission has considered the issue of product placement in the past—in movies, for example—it hasn't found that there's consumer injury," says Mary Koelbel Engle, associate director of the FTC's Division of Advertising Practices. "We're considering all of the information provided by Commercial Alert, but basically, we have the same law in effect, so it would be the same legal analysis." (The complaint to the FTC addresses the injury issue by contending that "product placement is implicated in the epidemic of marketing-related diseases in children," including obesity and Type-2 diabetes.)
The FCC doesn't sound galvanized by Commercial Alert's complaint, either.
"The issue is a real one, but I don't know that we would act on the broader issue within the context of one complaint," says Jon Cody, legal adviser to FCC chairman Michael Powell on media and broadband issues. "I don't even know that we would have the authority to say, 'Hey, you've got to put in either a bumper or something on the screen.'" With such mandates, Cody says, "you start getting into a very muddy First Amendment area."
John Zamoiski, CEO of NMA Marketing in New York and chairman of the agency council of the Cable & Telecommunications Association for Marketing (CTAM),
isn't sweating the impending federal response: "I cannot imagine this is something that the government will find to be of any advantage to anyone involved—the consumer, the advertising community, the production community or the networks."
While Zamoiski says he has "great respect" for Commercial Alert's interest in the public's welfare, he believes it's a little late to worry about marketers' weaving products into TV programs: "I guess Mr. Nader's organization has not watched a game show in the last 50 years."