But does "fairness" justify regulation of speech? Can a truthful ad be unfair? And should Congress give FTC authority to decide?
Lawmakers have decided the last of those questions. For 14 years, industry lobbyists have appealed to Congress to once and for all end fairness as a grounds for FTC ad regulation. They failed.
When Congress completes new FTC legislation, it again will renew FTC authority to challenge individual companies for unfair ads and probably restore FTC's power to write industrywide rules that could ban specific practices or entire ad categories. The only uncertainty is how much latitude FTC gets.
The hard question remains: Why isn't honesty enough? How can a truthful ad be unfair?
Deceptive ads are controlled to protect honest competitors from crooks and consumers from injury. The case for fairness controls rests on the notion that truthful ads can cause injury, too. So honesty isn't always enough, but it nearly always should be.
Fairness authority allows FTC to review ads to children that depict unsafe behavior, or a sampling program that delivers free razor blade samples in a newspaper where children might obtain them. That fits our notion of injury, and for examining particular problems with particular non-deceptive ads, what better forum than FTC?
But Congress is wrong in again making possible FTC industrywide rulemaking based on fairness alone. Wrong on principle and wrong on practicalities.
On principle, fairness-no matter how defined-is too broad a concept for any regulatory agency to apply to entire categories of advertisers-especially when otherwise protected speech is involved. No matter how badly anti-tobacco lawmakers want to see FTC become the driving force behind a broad cigarette ad ban, "fairness" can't justify it. That censorship battle belongs on Capitol Hill.
On practicalities, industrywide rulemaking at FTC, even when based on deception, has too often proven to be a costly time-consuming flop.
Congress can limit the potential damage of permitting industrywide FTC fairness rulemaking by adopting the tough fencing-in restrictions advocated by the American Advertising Federation and others. But even these restrictions can't take a bad decision and make it a good one.