Neuromarketing Could Face Legal Hurdles

Neuroscience sure seems to have a lot more potential than online surveys and focus groups in market research. At least on paper, evaluating brain activity seems a more straightforward path to gaining insight into advertising effectiveness than 15 people sitting around a table, possibly afraid to be completely honest.

But the brain! It doesn't lie, right?



Nielsen appears to think enough of neuroscience to have purchased NeuroFocus in 2011, while Innerscope and a host of other groups continue to press ahead with laying the groundwork for widespread adoption of neuromarketing.

Marketers are tapping into all kinds of biological responses – levels of blood flow in the brain, skin moisture, etc. in laboratory settings to understand how to better influence consumers. Neuroscience leads to neuromarketing.

But, if advertisers envision using neuroscience more widely, they may find the government in the way, according to a white paper published by law firm Covington & Burling.

There is increasingly “concern among government government regulators and consumer advocates” that studying subsconsious reactions to various ad tactics and then using the conclusions to sell products may yield “new forms of consumer deception and erode privacy rights,” the law firm writes.

Regulators taking an interest are in both Europe and the U.S. Here, Covington believes the FTC will take a long look at neuromarketing under “unfair and deceptive” trade practices strictures.

The law firm suggests regulators may be concerned that consumers are being “misled” into wanting products they don’t need. They’re bring tricked into believing they’re buying something due to “rational” choice rather than “induced to act based on subsconscious impulse.”

So, is this going to be a case of neuroscience, we hardly knew ya?  

The Covington piece might lead one to thinking that way. For example, the firm raises the prospect of advertisers facing big-time product liability claims and class-action suits charging neuroscience prompts increased sales of injurious products. Yes, consumers make their own choices, but if he or she were “induced to purchase” a product by “subtle advertising techniques that overcome his rational powers of resistance,” it could be bring on judge and jury.

Maybe most prominently, advertisers might have to grapple with charges that neuroscience leads to tactics encouraging children to “over-consume or become dependent” on “unhealthy foods or beverages.” Which could increase childhood obesity and other illnesses. The charges are nothing new to many beverage and food marketers, but certainly they could do without more.

Covington also suggests besides children, the FTC may want to protect “the elderly, economically disadvantaged minorities, persons suffering from or vulnerable to addiction or compulsive behavior” and others from abuse of neuroscience.

So, among other recommendations, Covington suggests industry self-regulation could help avoid government intervention and costly lawsuits. A code of ethics for neuromarketing that places some restrictions on marketing to kids and “other vulnerable groups” could help.

Covington noted self-regulation has been effective at keeping government partly off the backs of chemical manufacturers and alcohol marketers as well as food and beverage marketers and the online advertising industry in recent years.   

Neuromarketing operations and advertisers should take a page out of their proactive efforts, Covington suggests. Otherwise a promising field may find itself unable to fire on all synapses.

5 comments about "Neuromarketing Could Face Legal Hurdles".
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  1. Doug Garnett from Protonik, LLC, April 23, 2013 at 6:03 p.m.

    Yikes. Your first paragraph dramatically overstates the potential for this new shiny bauble of research. Strap someone into a brain reader, then in this horrendous environment show them an ad, then note that one are of the brain turns red on the display, then conclude the ad is the most effective? Very scary that the marketing world can be suckered in so effectively. There is tremendous theoretical background to be learned through neural research... But it is purely that: secondary research and it can't replace primary research in any way.

  2. John Grono from GAP Research, April 24, 2013 at 10:44 p.m.

    Hi Doug. We’ve been using neuroscience research here in Australia for around a decade. In essence it is used the same way as a focus group of between 40 and 100 people. It is used both on programme content and on ads. For example, we’ve seen the ‘lean-back’ nature of TV means that when the ad-break comes on the brain reacts. There are a few vital seconds in which a good ad can leverage this (nothing saves a bad ad). Interestingly, we’ve seen evidence that the inverse is true during sports broadcasts due to the high engagement during the game. When testing ads we’ve noticed that in the typical ad that there are (generally) four to five ‘hot spots’ of increased brain activity. The pleasing thing is that these hot spots tend to be universal across the respondents. I hasten to add that this activity is not always positive!. It is also often not the parts of the ad that the client and agency thought would ‘bring home the bacon’. There have been numerous incidences of a quick re-edit of the ad to remove the negatives and to re-position the positives (they work best at the start and the end of the ad) to produce a more effective ad and save the client wasted media dollars.

  3. Jim Thompson from Temple University, April 25, 2013 at 9:47 a.m.

    Jim Thompson • I'll reserve comment on the law firm's motivation for publishing the paper. And that is because there is an eminently more qualified forum for discussing it.

    Next week, the third annual symposium for Decision Neuroscience will take place. It is a unique conference at which over 100 experts in the field, from both the Academic and Commercial worlds, will share advances and discuss areas for improvement. This event will take place on May 3-5 and the first day is dedicated to a joint session between Neuromarketing companies, their clients and professors from around the world. For those who would like to participate, there is still time to register.

    You can see the discussion topics, presenters and participants at:

  4. Paula Lynn from Who Else Unlimited, May 9, 2013 at 7:50 a.m.

    Mind control is mind control. Chop it up, explain it away in any way you want, mind control is mind control and we will all be sorry it started for any reason in 10, 20 or more years. Fools and their expensive, dangerous tools.

  5. John Grono from GAP Research, May 9, 2013 at 8:16 a.m.

    OK Paula. I give up. Who hypnotised you into posting the 'mind control' comment. Neuroscience is absolutely nothing of the sort.

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