Page 307 - The Handbook of Persuasion and Social Marketing

Social Marketing and the Law 283

mushroom advertising violated the First Amendment rights of dissenting
mushroom growers. It distinguished an earlier decision that allowed a
similar program because the prior program was part of a larger regulatory
program that included nonexpressive elements. In Johannes v. Livestock
Marketing Association (2005), the court allowed a virtually identical pro-
gram to the one it overturned in United Foods, because it found the speech
actually was government speech and subject to the usual political controls.
The majority opinion did not discuss the dissent’s argument that the
speech in question was deceptively identified as private speech by America’s
beef products producers rather than as speech from the U.S. Department
of Agriculture. Today, it is clear that government-compelled speech can
present First Amendment issues, but it is not clear how courts should or
will analyze this issue.
Social marketers who team up with private entities in exchange for
sponsorship recognition have other concerns, as well. First, such sponsor-
ships are sometimes illegal. Austria and the Netherlands prohibit or strictly
regulate social sponsorships because of the potential influence they might
have (Maxeiner & Schotthofer, 1999). The FDA rule on tobacco promo-
tion also prohibits tobacco brand-name sponsorships for fear they will
influence youth, who tend to smoke the most well-known cigarette brands.
There are also tax implications for sponsorship arrangements. Money
donated to a charity is supposed to be a gift from the donor, not a purchase
from the nonprofit. Mere acknowledgment of the sponsorship donation,
including use of the donor’s logo and mention of the product line, address,
or website, is not taxable, because such a brief mention is presumed to
provide no substantial return benefit in exchange for the sponsorship fee.
However, if the sponsorship statement includes qualitative or comparative
discussion of products, price value, or savings information, or if the char-
ity endorses or presents any inducement to purchase, then the sponsor-
ship fee will be deemed to be the purchase of advertising. This also will be
true if the payment amount is conditioned on broadcast ratings, event at-
tendance, or any other measure of public exposure. In the case of such a
ruling, the donor loses a tax deduction and the charity must pay taxes on
the unrelated business income. If a charity’s sponsorships mostly look like
the sale of advertising, it might lose its nonprofit status (Stone, 2007).

Conclusion

Law is linked to social marketing in three ways. First, it is often used as a last
resort when social marketing has been ineffective. If people are not per-
suaded by social marketing to change socially undesirable behavior, then the