We’ve established that, for the most part, when we talk “commercial speech regulation” we’re talking about the regulation of advertising. Federal and state government have this area broadly in hand — the Lanham Act and state unfair trade practices laws generally prohibit deceptive advertising, while occasionally diving deeper into specific practices like installment contracts, telephonic sales, cooling-off periods, etc.
However, some professions having taken advertising regulation to a whole different level. While these regulations are typically described as necessary to address consumer risks unique to each profession, there are some uncomfortable truths at play:
- In the case of the law, industry advertising regulations have their origin in the Bar’s desire to limit its membership, maintain its gentrified image, and fix prices. “Consumer protection” is the fig leaf regulators have begrudgingly adopted as the modern commercial speech doctrine has hemmed in their ability to freely control speech here. As a result, attorney advertising regulation is far more specific and wide-reaching than necessary to protect consumers.
- Most businesses that run into trouble over their advertising face the prospect of little more than injunctions and fines. While these are never positive things, they are also predictable and containable risks. Professionals, however, face the additional consequence of disciplinary sanctions — which can threaten their very ability to continue their practices and maintain their livelihoods. As a result, most professionals tend to “over-comply” with such regulations.
- This combination of over-regulation and over-compliance depresses the ability of consumers to obtain information about professional services. This is bad for consumers, given that decisions about purchasing medical and legal services are some of the most momentous (and, often, costly) purchasing decisions they make. And it’s also bad for professionals, as consumers — increasingly accustomed to having extensive information about even the most inconsequential purchasing decisions, and frustrated at the lack of the same when it comes to legal and medical services — may be deferring or opting out of purchasing services that would otherwise benefit them.
Read on for some of the industry-specific tensions between the First Amendment and professional advertising regulation:
Pharma & Medical Device Advertising Regulation
Other Professions Advertising Regulation