It is obvious that by tapping into the consumer’s unconscious mind without their knowledge, the advertisers are engaging in deceptive practices. It is also an invasion of privacy. There are numerous legislation that prohibit advertisers from using subliminal messages in their ads. The FTC (Federal Trade Commission) Act Sec 5 – “prohibits unfair or deceptive acts or practices in interstate commerce.” They also claim they “have primary responsibility for regulation of advertising in this country.” However, Key writes that “there appears to be nothing here that would provoke the FTC into a charge of deceptive advertising.” The TV Code of the National Association of Broadcasters (IV, 14) states: “Any technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold of normal awareness is not permitted.” Unfortunately, these laws are vaguely stated yet greatly limited. The most potentially effective regulation is made by the U.S. Treasury Department, Division of Alcohol, Tobacco, and Firearms (ATF). It states:
Subliminals are inherently deceptive because the consumer does not perceive them at a normal level of awareness, and thus is given no choice whether to accept or reject the message, as is the case with normal advertising. ATF holds that this type of advertising technique is false and deceptive, and is prohibited by law.
The problem in this legal fight is not legislation, unfortunately. It is the proof. Because of its nature, subliminal messages are nearly impossible to prove. How do you prove to the judge there is a naked women in the Diet Coke can? How do you prove to the jury there are screaming faces hidden ice cubes? In this legal system, you can’t. The evidence would be considered circumstantial. Advertisers would of course deny any such activity and claim that if you stare into anything long enough, you will find it. The most substantial evidence is they spending billions annually on research and subliminal advertising. Therefore, it must work?!? Another crutch against us is that no one, including the advertisers, know how the brain works. They just know that it does. Until we can scientifically prove subliminal perception, this quest may be in vain. Key writes: “The rules prohibiting repressed media content have been ignored. None of the regulations have ever been enforced.” It seems like we are on losing grounds in this legal battle.