Neuromarketing Could Face Legal Hurdles

• by David Goetzl  @dgoetzl, April 23, 2013

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.