The Hidden Decision Makers: The Case for Expanding Advertising and Marketing Regulations to Include Psychological Manipulations

Abstract

Every year, businesses spend billions of dollars on advertising and marketing campaigns with hopes of capturing consumer attention, building memorable brand names, and boosting profits. In recent years, companies have begun to shift their marketing tactics, to focus on minute details such as phrasing, colors, scents, and sounds. Although this shift is seemingly harmless, it is actually manipulating consumers as these tactics are being intentionally designed to exploit vulnerabilities in the shopper’s decision-making process. Current governmental regulations consider deception, misdirection, and misinformation in advertising but have yet to address manipulation, leaving consumers vulnerable to monetary harm and violations of their autonomy. The overall purpose of this paper was to analyze the use and efficacy of psychological manipulations in advertising and marketing, examine the feasibility of their regulation, and further develop a behaviorally and legally informed policy solution to protect consumers. Through an analysis of published literature from philosophy, psychology, economics and law, this paper found that not only are there numerous types of behavior-changing psychological manipulations in the marketplace, but also that it is legally possible to regulate these manipulations without violating the First Amendment or legal precedent. In response to these findings, the paper proposes a regulatory framework that defines manipulations in Section 5a of the Federal Trade Commission Act, develops a pre-approval process for advertisements, and continues the current post-violation penalization process. Implications for the creation of future advertising policy are also discussed.