One of my favorite regular columns is The Ethicist over at the New York Times. I am not entirely sure whether my rate of agreement with the recommendations has increased or decreased since Chuck Klosterman took over the post, but then, part of what makes me eager to read the column is that it is routinely just as stimulating to read it and disagree. Now, maybe I am peculiar in that regard — after all, it gives me an opportunity to think, “if I were the Ethicist …” and I suppose I do kind of relish imagining having the job. But at any rate, when Klosterman in today’s column missed what I felt was an important and useful angle in his response to a question about the ethics of advertising, I was hardly disappointed — mostly I was just glad for the prompt to piece together my own thoughts.

In case you are paywalled out of the NYT (avid reader, you!), the gist of the question is this: since advertisements are aimed at creating spurious associations in our minds (as between swilling abysmal light beer and enjoying a rollicking sex life), and these associations cause us to part with our money in vain pursuit of impossible outcomes, is advertising, at least as such, an unethical form of behavioral influence? Klosterman answers in the negative. We know what advertising is trying to do and how it is accomplishing its goal, he notes, in stark contrast to true subliminal messaging, which flies under the radar of conscious awareness and therefore pushes the ethical envelope. Plus, he observes, advertising would not get very far if it were restricted solely to methods of rational persuasion. Klosterman argues that since viewers have a choice to avoid a given ad, its use of biased or manipulative techniques cannot be considered out-of-bounds so long as the content isn’t deceptive or defamatory to competitors or aimed at children.

I do not think this is a bad analysis, as far as it goes — but I do think it is incomplete. And I think that a fuller analysis would move us squarely into the topical ambit of this blog. (At Stanford Law, we know not to write too far without establishing subject-matter jurisdiction!) Klosterman himself frames this as a partly legal issue at the outset — the Federal Trade Commission and the Bureau of Consumer Protection exist in part to implement some limited, legislatively authorized vision of advertising ethics. But advertising is also a neuroethics issue. Of course I would think so — CLB alumna Emily Murphy made this exact point alongside two of my former bosses in a 2008 paper called Neuroethics of Neuromarketing. The paper argued that if “stealth neuromarketing” — the use of neuroscience methods to optimize the efficacy of advertising, deployed in ads without disclosure — becomes sufficiently widespread and effective, it will threaten consumer autonomy unless companies adopt and abide by a code of ethics.

Today’s Ethicist, though, invites a slightly different neuroscience angle. It calls up the old paradox embedded in the “view from neuroscience.” We have known all along that advertising, like anything else that impinges on the mind, affects the brain. How could it not? And yet, when you stop and actually think about the barrage of ads you experience every day as deliberate attempts to rewire the motivational circuits looping between your thalamic regions and your frontal cortex, you might start to feel a little wronged. Before you get too worked up, though, hang on to perspective — it is also possible to think of anything anyone says to you as an attempt to change your brain. Still, viewed in this light, it feels like Klosterman is going a little easy on advertising. It would be one thing if advertisers were trying to change your brain in ways that better equipped you to navigate the world and realize your preexisting desires, also known as rational persuasion. But much advertising involves companies making you worse at navigating the world (causing you to associate smoking with rugged individualism and not with lung cancer) and foisting previously uncontemplated desires on you, all in the service of parting you with your money. Somehow, the concretizing power of neuroscience — thinking of it in brain terms — makes the whole business sound much more injurious and ethically questionable. Who likes feeling that their neurons are being hijacked?

Of course, maybe Klosterman’s point that we expose ourselves to advertising voluntarily (by, e.g., failing to change the TV channel when the commercials come on) serves to rehabilitate the whole practice. Maybe if his premise were convincing I would agree. But from what we know of behavioral psychology, this notion of voluntary consumption seems unlikely in a world absolutely saturated with ads. Researchers in the field, especially Roy Baumeister, have amassed considerable evidence pointing toward a phenomenon called ego depletion: the tendency of willpower to function as a finite, slowly-replenishing, but nonetheless exhaustible resource. If it is true that each advertisement we come across requires an act of will to resist viewing, then Klosterman’s model only holds true for the first few we see on a full willpower gas-tank. After that, we cannot sensibly be understood as having given any kind of robust consent to the ad’s effects.

So, in a few ways, I think Klosterman could have pressed the issue a little harder from a neuroscience angle. Still, critique is all well and good, but it does not tell us what we should be doing, and this is, after all, a comment on The Ethicist. Here, though, I find it difficult to say anything conclusive. It seems strange to suggest that we should try enact policies aimed at limiting the efficacy of advertising; would the underlying idea be that we are okay with companies colonizing our brains as long as they don’t get too good at it? If that sounds strange, then what is it that we want advertising to do in our society? Klosterman thinks it cannot be limited to mere informing at the expense of persuading; even if you disagree with him and think that is a good line to draw in theory, it nonetheless becomes extraordinarily tricky to implement in practice in a principled and consistent manner, since informing and persuading are on some level inextricable. What started out, in a neuroscientific register, as an intuitive and uncontroversial principle — “we only want people changing our brains in ways we would endorse!” — quickly runs up against messy political and social realities when we try to shift to the register of ethics, law, and public policy.

Still, this is a conversation that we ought to take every opportunity to have. If neuromarketing begins to deliver on its powerful promise, then the challenge of squaring advertising with our understanding of the brain — which most of us, like Klosterman, are for now content to skate over without too much worry — will be thrown into exquisitely sharp relief. We should start getting clear as soon as we can on what we want out of advertising, which will require, among other things, that we all learn to shift more smoothly between the neuro register and the ethics / law / public policy register.

Roland Nadler, Stanford Law School class of 2015
CLB Student Fellow

8 Responses to Neuroscience, Neuroethics, and Advertising
  1. Of course, law student Nadler, what does your analysis say about legal advocacy, which arguably is more about using logic to convince people than advertising is . . . but not entirely?

  2. Incisive question, mysterious commenter hgreely 😉

    Seems to me that the legal system’s use of advocacy that outstrips the bounds of strictly rational persuasion is a little different. It unfolds within the bounds of an adversarial system, where an assault on dopaminergic neurons in one direction is sure to be countered by a similar such assault in the opposite direction. As long as the law’s schema of institutional design sets that clash of perspectives in something close to equipoise, it’s hard to take issue with it. (Whether the prevailing system actually embodies equipoise — hey there, Twombly and Iqbal! — is another story.)

    Of course, this might also be why lawyers who are doing visible work in non-adversarial settings (i.e., where the public usually sees them) are so widely reviled …

  3. Light beer and sex is a “spurious association”?…speak for yourself!

    Is there really evidence that “stealth neuromarketing” would be that powerful? So that consumers couldn’t resist it? And is there reason to think that independent organizations or individuals would not be able to point out that companies were engaged in secret subliminal messaging, potentially leading to a backlash against those companies?

    Anyway, where you write: “And yet, when you stop and actually think about the barrage of ads you experience every day as deliberate attempts to rewire the motivational circuits looping between your thalamic regions and your frontal cortex, you might start to feel a little wronged.” …I don’t feel that way at all. It’s more like I congratulate myself on having such strong neural circuits that they can’t be rewired by such feeble attempts. I should be thankful to advertising then for boosting my self-confidence.

    Anyway, I have a plan. We just ban advertisements. Of course people would still need goods and services, so those would all be registered with the government and people could check local government offices to receive very matter-of-fact descriptions of what they are able to purchase from whom for what cost. In one form of the user interface, the order in which the listings in a particular category would appear would regularly be randomized, but consumers could also consult a database of ratings from government regulators, or another database of consumer reviews.
    Doing away with advertisements might kill a lot of forms of media (and hopefully European soccer…companies on uniforms? Really?) BUT then we could have government run media outlets, the control of which would be based on elections…with allotments for minority parties.

  4. Nice post Roland! I agree that most advertising is highly ethically suspect, but don’t forget about advertising’s better half – the social marketing and nudges that use the same principles and techniques to help people better align their higher and lower order desires and lead healthier and happier lives 🙂 Not all marketing is evil, and it’s important to remember that these tools can be used to advance ends other than parting people with their money.

  5. Roland – Nice post but I would be a bit harder on Klosterman than you are. I think the question posed was whether advertising, relying as it does primarily on non-rational techniques of persuasion (for example, vividness, symbols, repetition, association, conditioning, etc) is ethical given that the best evidence is that we are both largely unaware of it (that is we know advertising is trying to persuade us but are less conscious of how) and that even when we are aware of some techniques our power to defend against it is questionable, is ethic given that it is “information” is often not informative at all in the ordinary sense and often downright dangerous (viz. smoking makes you glamorous). Instead, Klosterman focused on a question the writer did NOT ask about the ethics of subliminal advertising. (This technique is described in the piece so I won’t repeat). As Klosterman notes the evidence is mixed on whether subliminal advertising works in the manner that it is often proposed that it does. Sometimes it does. Sometimes it doesn’t.But focusing on that technique becomes sort of a straw man to knock down. It doesn’t really answer the question.

    I would say a lot of it is NOT ethical insofar as much marketing is like a giant, unregulated experiment on human subjects. Perhaps as unregulated experiments go it is relatively benign. Still, marketers employ techniques that operate largely below the level of consciousness and they are crafted using the latest behavioral and market research which illustrates the ways in which people can be manipulated or their cognitive limitations or position exploited, for profit. Marketers try something. They see if it works in real time. If it does seem to they will do more of it. And they use our experience of control and desire to see ourselves as rational to make us conspirators in our own bondage in a way (perhaps to be a bit hyperbolic!). In any event, given that it is NOT really possible to totally avoid advertising the avoidance gambit doesn’t really cover the question either. What is the ethical dimension, for example, of pitching fast food to kids using primary colors, beloved cartoon characters, placement around kids shows, promoting their food with toy give-aways etc. when we know kids under 12 have a hard time separating advertising from editorial content? And we know kids are not even formally or hypothetically supposed to enjoy full access to their cognitive abilities or be able to fully exercise self-control? Yet we can see with toys and cartoon characters that fast food marketers are speaking directly to kids, by-passing parents, hoping to exploit the nag factor.” This for a product which may, if consumed early, help form lifetime eating habits which contribute to overweight, diabetes, hypertension and the like. Now of course it isn’t inevitable. And parents have to buy the food if at all. But why should it not be possible through the political process for parents to say, “We don’t want you talking directly to our children?”
    There are too many issues here for a blog post. I am working on an article right now on the issue of commercial speech and so-called paternalism. But I was so glad to see someone else thought this response was inadequate, in not exactly for the same reasons.

  6. Well said, mysterious (marketing student) Noah C! Another way of making your case is that marketing is a tool, and like all tools, can be used for either good or evil.

  7. Indeed, mysterious Professor Reiner. I hesitated to use the very subjective terms good and evil, but that’s essentially what I was getting at!

  8. Really thoughtful and enlightening comments, everyone. A few stray thoughts in light of what’s been said —

    First, as to the potency of stealth neuromarketing, I can’t recall right now a good source to cite for this, but I have read a few reports to the effect that the initial results of attempts at neuromarketing indicate that so far it is a total bust. Maybe we’ll get there one day, but we are not even close yet.

    Even if we wanted to get rid of all advertising, we couldn’t, for a variety of reasons; and I think Noah is correct that like all tools, the ethics are in the use. Plus, I just can’t bring myself to object to, e.g., FDA’s new anti-smoking ad blitz (

    Also, it’s pretty far out of the bounds of realistic politics to impose even less-drastic regulations on advertising. Back in the early 80s, the FTC started to investigate the mere possibility of regulating food advertising to children (the KidVid initiative), and Congress hated the idea so much they killed it. It was also during this time that a coalition of advertisers got together and sued the FTC, alleging that its chairman was so biased against advertising to children that he was unfit for the regulatory project! (In fairness, chairman Michael Pertschuk really did hate those sugary cereal commercials.) They prevailed in the district court before losing on appeal (,%20INC.%20v.%20F.%20T.%20C.).

    Meanwhile, the Caronia case (see gives me reason to fear that the Roberts court may soon be handed an opportunity to strike, on First Amendment grounds, at the heart of our ability to regulate all kinds product-promoting speech.

    As for advertising being a massive unsupervised human-subjects experiment … it is! The showstopping problem is that … nearly every sphere of human activity is, as well. Legislative politics itself — especially in a federalist system like the USA’s — is one massive, poorly-controlled, nonrandomized, nonblinded human-subjects experiment. Now I agree that advertising is much more discrete and intentional a phenomenon, much more in kind like actual science. But it’s still far enough away from what we currently regulate as experimentation that we are stuck with a massive line-drawing problem.

    All that being said, I’m in agreement that Klosterman danced around the actual question and substituted an easier straw-question. Not his most on-point performance. It’s not that he was completely wrong, just … well, anyhow.

    One other musing — it’s maybe a little ironic that this post went live while I was watching Super Bowl XLVIII. Especially because, there being very little *game* to watch, I was mostly in it for the commercials …

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