Page 298 - The Handbook of Persuasion and Social Marketing

274 The Handbook of Persuasion and Social Marketing

members of the class, the judge approved the settlement as fair, adequate,
and reasonable (DeHoyos et al. v. Allstate Corp., 2007).
Thus, while the law may be viewed as the last resort of social marketing,
by mandating behavioral change after persuasion doesn’t work, it also
should be viewed as a complement to social marketing, by imposing in-
centives or changing the consumption environment to enhance the effec-
tiveness of social marketing persuasion. For example, incremental
behavioral mandates that diminish the social acceptability of smoking,
such as banning smoking in public areas and workplaces, may both en-
hance antismoking social marketing campaigns and diminish the effective-
ness of cigarette promotion.
Although the law and social marketing often complement each other,
the law also exerts some regulatory authority over social marketing as part
of its role to regulate marketing practices in general. The next section
presents a definition of commercial marketing and a quick summary of
how the law regulates it. The following section examines how the law dis-
tinguishes between commercial and noncommercial speech, which is an
important issue because the latter receives a higher level of First Amendment
protection. The third section examines the sorts of regulations that are of
concern to social marketers.

The Regulation of Commercial Speech and Commercial Marketing
Before examining how the law may regulate social marketing, we must
first examine how it regulates commercial marketing practices. Commercial
marketing is generally defined as programs designed to facilitate voluntary
exchanges between buyers and sellers—typically consumers paying money
for goods and services (Gundlach, 2007). The techniques used are often
divided into the “four P’s” of the marketing mix: product, promotion,
price, and place (i.e., distribution; McCarthy, 1960). In the regulation of
marketing, the law generally seeks to protect the interests of both consum-
ers and businesses and also seeks to promote allocative and dynamic eco-
nomic efficiency (Petty, 1996). Marketing regulation generally follows a
capitalist model, in which consumers are considered both rational and free
to make their own choices. Marketers are generally allowed to attempt to
persuade adult consumers to purchase particular goods or services through
various types of rational and image/emotional appeals.
Undoubtedly, many commercial marketers believe that they provide
a social benefit. Sellers of weight-loss products are assisting to reduce
obesity and its social costs in the same way that smoking cessation prod-
ucts and programs reduce the public health costs associated with tobacco