Page 304 - The Handbook of Persuasion and Social Marketing

280 The Handbook of Persuasion and Social Marketing

consumption by consumers (Dorfman, Cheyne Friedman, Wadud, &
Gottlieb, 2012). This goal arguably places such campaigns within the do-
main of social marketing and could cause a court to find that the commer-
cial and noncommercial aspects are intertwined. Ultimately, the
determination of whether commercial marketing laws apply will turn on
the specific facts of any particular example and whether the commercial
aspects dominate the noncommercial aspects.
In contrast, social marketing efforts such as campaigns run by the me-
dia as a public service (rather than as purchased advertising) and pro-
duced by the government or by nonprofits not selling products or services
would probably be deemed fully protected speech and would not be sub-
ject to regulation as commercial advertising. The only regulatory concern
for such programs would be laws or regulations regarding noncommercial
speech.

Legal Regulation of Social Marketing

The question of whether a social marketing campaign is commercial
speech or at least intertwined with fully protected speech is important for
determining how it might be regulated. State laws regarding privacy and
the FTC’s endorsement guidelines only cover commercial speech, but the
latter could cover a commercial endorsement by an expert nonprofit or-
ganization. Most of the FTC telemarketing regulations cover for-profit fun-
draisers who work for nonprofit charities. Such fundraisers must not call
at night between 9 p.m. and 8 a.m. and must not use autodialers without
prior permission; in addition, the charity must maintain its own “do not
call” list even though it does not have to follow the national list adminis-
tered by the FTC.
However, because fundraising firms have been known to contribute as
little as 15 percent of the money they raise to the charity for which they
solicit, some states have attempted to regulate such fundraising efforts.
The U.S. Supreme Court has overturned state statutes that set maximum
percentages of funds used for fundraising (e.g., 25 percent) and in one
case also struck down a requirement that before asking for money, fund-
raisers had to disclose the percentage of the prior year’s solicitations that
actually went to the charity. It found that these prior restraints on charita-
ble solicitation unduly chilled fully protected speech in violation of the
First Amendment.
But more recently, the court upheld the right of the Illinois attorney
general to sue for-profit telemarketers for fraud for falsely telling people
that the majority of their contributions went to the charity and for failing