Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review
In March 2014, Congress introduced the Truth in Advertising Act Bill. The goal of the law was for the Federal Trade Commission (FTC) to regulate to what extent advertisers could digitally alter images used in advertisements through a systematic framework. Digitally altered images of models in beauty ads, the Act’s supporters say, are harmful to consumers as they are misleading, manipulative, and they contribute to negative body-image. The Act did not gain the momentum necessary to pass the bill into law, and remained stagnant until a reintroduction in early 2016. Although the Act is well intended, and takes on the noble effort of ensuring that men and women in America are not bombarded with images of unattainable beauty, the Act has many flaws and gaps that need to be addressed before it can be successful.
The major issue with the Act: blanket regulation on all digitally altered advertisements. Since not all digitally altered images are necessarily misleading, or contribute to negative body image, the fate of the Act remains unclear. Digital alterations of images often speak to simple aesthetics of an advertisement, and seek to only enhance the visuals. Other times, digital alteration can delve into manipulation. The point of contention is discerning when artistry and creativity cross over into manipulation. Drawing that abstract line, distinguishing the point where art transcends into something dangerous, is what lawmakers struggle to mold.
The First Amendment: Free Speech
Some countries regulate the use of digitally altered images in beauty advertisements. England, for example, famously banned two skincare advertisements by two large global brands, L’Oréal and Maybelline. The governing body, the Advertising Standards Authority, claimed that the digitally altered images mislead consumers through exaggeration of the skin of celebrities in the advertisement, and breached its code of conduct. In France, after six years of consideration, members of parliament voted to update the country’s code to require published images to have bold printed notice disclosing any digital enhancements. The move was in direct response to complaints that the beauty industry was negatively impacting young women in France.
England regulates the use of digital alteration in advertisements for consumer deception reasons, and France regulates them for health concerns. The reason the United States cannot so easily follow suit is because the First Amendment bars certain kinds of regulation. Free speech is an extremely cherished right by American society, and lawmakers and judicial authorities are careful to protect free speech. While commercial speech does not enjoy all the protections of religious or political speech, it still has First Amendment protections. If an advertisement references a specific product and is not misleading, it is generally protected by the First Amendment and may not be subjected to regulation. If it is shown to be misleading, the speech is open to possible government regulation, as long as the government has a substantial interest in restricting the speech and the regulation directly advances that interest without being broader than necessary. The rationale behind affording less protection for commercial speech is that it is economically motivated, and much more readily verifiable, it is much more durable and less likely to be chilled as opposed to other forms of speech.
To analyze the constitutionality of the Act under the commercial speech doctrine, two issues need to be assessed. First, whether digital alterations of advertisements are ‘misleading’ and subject to government regulations, and if so, whether the Act directly advance a substantial governmental interest without being too broad.
Photoshop in Advertisements–Misleading?
The issue of whether digital alterations are implicitly misleading, due to consumer perception, is significant and worth analyzing. The Supreme Court has held that commercial speech that is false or misleading receives no protection. To stop constitutional challenges right in its tracks, digital alterations would have to be shown as misleading and/or false. However, whether a digital alteration of a human body in an advertisement for a beauty or body product is deceptive is not easy to discern. The FTC holds that an advertisement is false or misleading if it “misleads consumers who are acting reasonably under the circumstances.” If digital alteration in an advertisement plays a material or important role in a consumer’s decision to buy the product in the advertisement, the advertisement is deemed deceptive and is not offered constitutional protection.
The lack of guidance in the Act on how to evaluate this key issue is troublesome. To date, the FTC has not decided on such an issue. The only guidance comes from a 2013 decision by National Advertising Division (NAD) where it determined that a CoverGirl advertisement for its ‘Clump Crusher’ mascara was misleading and deceptive. The advertisement showed a model who was wearing lash extensions, despite the advertisement being for the mascara alone. According to the NAD, the marketing ploy could deceive consumers into thinking that the mascara alone could offer such results. The NAD also held that when an advertiser made a quantified performance claim and included an artificially enhanced picture of a model, either digitally or physically, the picture served as a false product demonstration. However, NAD decisions are not binding on the FTC, and so the decision does not offer much weight. It is unclear if the FTC would look to such decisions when creating the required regulatory framework is yet to be discussed. Since the Act does not address such issues, the standard of review for such cases is extremely vague.
The Act could potentially regulate advertisers whose digital alterations would not be misleading or false according to the FTC’s definition. For example, the Act would allow the government to restrict an advertiser from slimming the body of a model or actor in an advertisement for lawn equipment. Although such an alteration may serve as a fringe reason to purchase the lawn equipment, such a representation would not play a pivotal role in the purchasing decision of a reasonable lawn equipment consumer. Despite this, the Act would regulate such marketing decisions just the same. This concern of over broadness even at the false and misleading level leads directly into the second concern of whether the regulation directly advances government interest.
Health and Photoshop: A Substantial Government Interest?
The Act adopts the American Medical Association’s policy that encourages advertisers from altering photographs in a manner that promotes unrealistic expectations of appropriate body image. Congressional findings indicate that advertisements that include human bodies that have been digitally altered directly cause negative body image among young people. Continuous subjection to only ideal beauty standards in the media cause children, adolescents, and adults develop unhealthy self-esteem issues. Therefore, the substantial government interest the Act proposes is the government’s interest in the mental health of its citizenry.
Since the proposed rule seeks to place a blanket regulation through a one-size fits all framework, the Act could potentially restrict advertisers whose digital alterations do not contribute to negative body image. The Supreme Court is cautious of paternalistic regulations that attempt to restrict otherwise truthful advertising. In 44 Liquormart, Inc. v. Rhode Island, the Court found that laws seeking to restrict what people can see ‘for their own good’ should be met with skepticism. Such bans, the Court held, often only serve to obscure an underlying governmental policy that could be successfully implemented without regulating speech. The concern that such advertisements negatively affect the mental health of people by promoting unrealistic beauty standards may not survive analysis under the 44 Liquormart standard of skepticism. The basis for the Act’s conclusion that such regulation would significantly advance the state’s interest in promoting healthy body image would have to include a showing that regulating such advertisements would significantly contribute to a nationwide increase in positive body image.
The Act would have to show that regulation of digital alterations in advertisements are the only reasonable way for the government to achieve the goal. It could be argued that the solution for promoting positive body image is not through speech regulation, but through education in schools. Since regulating advertisements would only screen a risk factor for negative body image, and does not confront the issue at the root, it could be argued that the Act does not directly advance the government’s interest in positive body image. Furthermore, advertisements tend to use extremely attractive people that do not represent the average population. Therefore, regulation of digital alteration of images does not mean that the average consumer will no longer be subjected to impossible beauty standards. Consumers will still be barraged with images of unattainable beauty standards due to the very nature of who advertisers feature in their advertisements.
The New Celebrity: Social Influencers
The rise of social media has dramatically shifted the way people purchase goods. A poll conducted by PricewaterhouseCoopers showed that nearly half of more than 22,000 respondents indicated that reviews, posts, and conversations on social media affect their purchasing decisions. Advertisers have capitalized on this by increasing their social media presence, and by partnering with social influencers.  The issue with the Act is that it does not account for this shift in marketing and consumer habits.
By uploading content that appeals to the masses, social influencers interact with astonishing amounts of people all over the world. Due to their access to such large audiences, social influencers are swiftly redefining the meaning of celebrity endorsements. Research from twitter showed that 49% of consumers who are active on social media look to social influencer accounts for guidance on what to buy. Advertisers partner up with these social influencers, either by directly paying them for uploading content, or by giving them free products in exchange for reviewing their product or posting about it. The phenomenon of using ‘regular people’ with powerful reach to advertise products is so prevalent that the FTC responded by releasing a guideline for social influencers who post sponsored content. Since the Act seeks to restrict digital alterations on all advertisements, the restrictions and/or the required disclosure of digital alteration could potentially encroach on individual privacy rights. A social influencer who posts sponsored content for makeup would either be restricted in their own private choice to edit their photographs, or be forced to disclose any editing. Since the Act turns on the impact of seeing altered images in advertising, and not whether the altered images are misleading and materially affect purchasing decisions, the Act presupposes the ability to regulate private actors’ individual decisions as well. Allowing the government intrusion over the actions of private individuals is a concern that the Act fails to adequately address.
A New Direction
To have meaningful impact, the Act must be reanalyzed for clarity and prospective constitutional challenges. The Act should be rewritten to focus on deceptive claims only. By making the concern over the prevalence of Photoshop in advertisements a health concern, the Act is vulnerable to attacks on being too broad. Instead, the Act should focus specifically on beauty advertisements that are digitally altered to project a magnified version of whatever the product purports to do.
The Act must be clear as to not implicate social influencers and their decisions to edit their images, unless the decision was prompted by the content sponsor. Ensuring so will protect the privacy and individual autonomy of average citizens from unnecessary government intrusion. The rationale behind this is simple–social media followers look to the guidance of social influencers. By taking this course, Congress can protect consumers from false and misleading advertisements, and also advance its interests in responding to staggering levels of negative body image in America.
By adhering to such standards and laws, and framing the Act to conform to existing judicial standards, the Act can indeed become a key piece of legislation that successfully aids the fight against body image concerns.
 Truth in Advertising Act of 2014, 113 H.R. 4341, 2014 H.R. 4341, 113 H.R. 4341.
 The Act concerns only digital alterations of human bodies. Id (Truth in Advertising Act of 2014 – Directs the Federal Trade Commission (FTC) to submit a report to Congress that contains: (1) a strategy to reduce the use, in advertising and other media for the promotion of commercial products, of images that have been altered to materially change the physical characteristics of the faces and bodies of the individuals depicted; and (2) recommendations for a risk-based regulatory framework with respect to such use).
 Truth in Advertising Act of 2014, 113 H.R. 4341, 2014 H.R. 4341, 113 H.R. 4341. The FTC would have over a year to produce this framework, and include a report to Congress about the general trends of digital alteration in advertisements.
 Press Release, Capps, Ros-Lehtinen, Congresswoman Lois Capps, Introduce Truth in Advertising Act, (March 27, 2014) (on file with author).
 Congress Gov., H.R.4445-114th Congress (2015-2016), https://www.congress.gov/bill/113th-congress/house-bill/4341 (last visited Nov. 26, 2016). While the 2014 version of the Act did not make it past the introduction stage, the Act was reintroduced in 2016 and is currently awaiting feedback from the Subcommittee on Commerce, Manufacturing, and Trade.
 The Procter & Gamble Company (COVERGIRL Clump Crusher Mascara), NAD Report No. 5635 (Sept. 25, 2013).
 Vivian Diller, Is Photoshop Destroying America’s Body Image?, The Huffington Post (July 8, 2011), http://www.huffingtonpost.com/vivian-diller-phd/photoshop-body-image_b_891095.html.
 Airbrushed make-up ads banned for ‘misleading’, bbc news (July 27, 2011), http://www.bbc.com/news/uk-14304802.
 Rachel Lubitz, France Passes Law Requiring Companies to Admit When Models Have Been Photoshopped, Style Mic, (Nov. 23, 2016), https://mic.com/articles/130789/france-passes-law-requiring-companies-to-admit-when-models-have-been-photoshopped#.sKWMjSOBu.
 Commercial speech is speech with a message that is an advertisement, that references a specific product, and has an economic motivation. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S. Ct. 2875 (1983).
 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 556 (1980).
 Id; see also Bolger, 463 U.S.
 Cent. Hudson Gas, 447 U.S. 557.
 Va. State Bd. of Pharm., v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 (1976).
 Cent. Hudson Gas, 447 U.S. 557.
 The Federal Trade Comm’n, FTC Policy Statement on Deception (1983).
 The NAD is a division of the Better Business Bureau that offers advertisers alternate dispute resolution avenues. Compliance and participation is voluntary.
 Supra note 5.
 American Medical Ass’n., Truth in Advertising, (Nov. 23, 2016), https://www.ama-assn.org/truth-advertising.
 Supra note 8.
 Nat’l Eating Disorders Ass’n., Media, Body Image & Eating Disorders, (Nov. 24, 2017) https://www.nationaleatingdisorders.org/media-body-image-and-eating-disorders.
 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
 Id. at 503.
 Id. at 530.
 EMarketer, How Social Media Influences Shopping Behavior, (Nov 21, 2016), https://www.emarketer.com/Article/How-Social-Media-Influences-Shopping-Behavior/1013718.
 A social influencer is an average person who has amassed a large following on their social media accounts and has a high level of influence over their followers.
 Nathan Skid, How Much Is A Social Media Influencer’s Audience Really Worth?:
Laundry Service CEO Jason Stein Breaks Down Social Media Economics, Advertising Age (Nov. 17, 2016), http://adage.com/article/digital-crash-course/a-social-media-influencer-s-worth/300479/.
 Katherine Karp, New research: The value of influencers on Twitter, Twitter Blog (Nov. 20, 2016), https://blog.twitter.com/2016/new-research-the-value-of-influencers-on-twitter.
 The Federal Trade Comm’n, Native Advertising: A Guide for Businesses (2015) (For example, the guidelines call for clear and visible disclosure of sponsored content).
 Anxiety and Depression Ass’n of America, Body Dysmorphic Disorder, https://www.adaa.org/understanding-anxiety/related-illnesses/other-related-conditions/body-dysmorphic-disorder-bdd (last visited Nov. 24, 2016).
 While regulating digital alteration of images in advertisements would not solve the issue of negative body image, the regulation of images that contribute to this issue could be helpful. By regulating the prevalence of unrealistic and unrepresentative images of bodies in the media, the Act could help circumvent the negative effect that the media has on self-esteem, body image, and overall mental health.