ANA and a large, diverse group of media and marketing companies and associations have urged the Federal Communications Commission (FCC) to reject any new requirements on sponsorship identification announcements for product placement. The joint comments of the “National Media Providers” were filed in response to a Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) by the FCC on potential new disclosure rules for “embedded advertising.” The comments were drafted by Robert Corn-Revere, a media/First Amendment expert and partner at the law firm of Davis Wright Tremaine, LLP. ANA was a leader in building this coalition, which represents all aspects of the national media businesses potentially affected by the FCC proposal.
The Notice asked a broad range of questions regarding the adequacy of current disclosures for product placement. The Commission also sought comment on a proposed rule change that would require disclosures to have lettering of a specific size and to air for a particular amount of time during a program.
As our industry comments note, product placement has been in existence in one form or another since the earliest days of broadcasting. In fact, product placement and other forms of commercial support from marketers are the life blood of our system of broadcasting. There is already a large body of law, FCC rules and policy statements adopted over the years that address various forms of sponsorship practices. We believe that the current disclosure rules and policies are fully adequate to inform and protect the public. The expanded disclosure rules proposed by the FCC are unnecessary. They would undermine the economic foundations of broadcast and cable, distract and annoy viewers and raise very serious First Amendment concerns.
The recent increase in the use of product placement is a necessary response to the tremendous changes in the media environment. Advertiser-supported media face greater challenges in the emerging “on demand” world, and product placement is an important part of preserving free or advertiser-supported media among the choices available to consumers.
Unfortunately, it seems that the Commission’s proceeding has been prompted by some advocacy groups, such as Commercial Alert, who would like to drastically reduce or eliminate the practice of product placement. Many of these proposals are premised on child protection rationales that are totally inappropriate for adult programming. In fact, there has been no showing of how the public is adversely affected by product placement. The FCC proposal appears to be a “solution” in search of a “problem.”
This is not a new issue. Several years ago, Commercial Alert asked the FCC and the FTC to require “pop up” disclosures to appear on screen whenever a product appeared during a program. ANA and other industry groups filed comments with both agencies opposing this proposal. The FTC ultimately rejected the Commercial Alert suggestion. This burdensome approach would destroy the flow and verisimilitude of programming. It would clearly violate the constitutional strictures that require government restrictions on speech to be “no more extensive than necessary.
The FCC and the FTC under present rules have the power to adequately regulate in this area. We hope the FCC will avoid serious new restrictions that could have damaging consequences and in fact protect no one.
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