What are the ethical issues concerning marketing and advertising in relation to consumer ‘autonomy’ and 'targeting the vulnerable' (pp. 202-211)? Discuss, using the example of advertising to children, with reference, to one ethical theory you find to be relevant.
MARKETING ETHICS AND CONSUMER AUTONOMY Defenders of advertising argue that despite cases of deceptive practices, overall advertising contributes much to the economy. The majority of advertisements provide information to consumers, information that contributes to an efficient function of economic markets. These defenders argue that over time, market forces will weed out deceptive ads and practices. They point out that the most effective counter to a deceptive ad is a competitor’s ad calling attention to the deception.4 Beyond this question of what advertising does for people, a second important ethical question asks what advertising, specifically, and marketing in general, does to people.5 Individuals may well benefit from business’s marketing of its products. People learn about products that they may need or want, get the information that helps them make responsible choices, and even sometimes are entertained. But marketing also helps shape culture, some would say dramatically so, and the individuals who develop and are socialized within that culture. Marketing can have direct and indirect influence on the very persons we become. How it does that, and the kind of people we become as a result, is of fundamental ethical importance. Critics of such claims either deny that marketing can have such influence or maintain that marketing is only a mirror of the culture of which it is a part. The initial proposal in this debate was offered by economist John Kenneth Galbraith in his 1958 book, The Affluent Society. Galbraith claimed that advertising and marketing were creating the very consumer demand that production then aimed to satisfy. Dubbed the dependence effect, this assertion held that consumer demand depended upon what producers had to sell. This fact had three major and unwelcomed implications. First, by creating wants, advertising had the law of supply and demand on its head. Rather than supply being a function of demand, demand turns out to be a function of supply. Second, advertising and marketing tend to create irrational and trivial consumer wants and this distorts the entire economy. The “affluent” society of consumer products and creature comforts is in many ways worse off than so-called undeveloped economies because resources devoted to contrived, private 202consumer goods were therefore denied to more important public goods and consumer needs. Taxpayers deny school districts small tax increases to provide essential funding, while parents drop their children off at school in $50,000 SUVs. A society that cannot guarantee vaccinations and minimal health care to poor children spends millions annually for cosmetic surgery to keep its youthful appearance, and billions of dollars each year on drugs to slow hair loss, to counteract erectile dysfunction, to lose weight, or to ease heartburn caused by overeating. Finally, by creating consumer wants, advertising and other marketing practices were violating consumer autonomy. Consumers who thought themselves free because they were able to purchase what they wanted are not in fact free if those wants are created by marketing. In short, consumers are being manipulated by advertising. Such a claim, if true, would have overwhelming ethical implications. Individual autonomy, the central element of Kantian respect for persons, would be violated by the creation of wants. If consumers are manipulated to pursue trivial and contrived products, then market exchanges only appear to, but do not actually, increase overall satisfaction. If the law of supply and demand were reversed, then the democratic nature of markets, and the ability of consumer demand to limit the power of the owners of capital, would be a façade. The claim that supply follows demand is used by defenders of capitalist economies to explain the democratic nature of markets (they are only giving consumers “what they want”). It also is used to explain why the consolidation of wealth in the hands of a few is not dangerous, since if the owners of productive capital do not conform to consumer demand, they will lose their investment. But if Galbraith is correct, these two major political rationales are proven unsound. The “dependence effect” is a major issue indeed. Ethically, the crucial point was the assertion that advertising violated consumer autonomy. The law of supply and demand is reversed, and the economy of the affluent society is contrived and distorted, only if consumer autonomy can be violated, and consumers manipulated, by advertising’s ability to create wants. But can marketing violate consumer autonomy and, if it can, does this occur? What can advertising and marketing do to people and to society? An initial thesis in this debate claims that advertising controls consumer behavior. Autonomy involves making reasoned and voluntary choices, and the claim that advertising violates autonomy might mean that advertising controls consumer choice. Psychological behaviorists and critics of subliminal advertising, for example, would claim that advertising can control consumer behavior in this way.6 The earlier discussion of digital technology and digital addiction raises this very point in a contemporary setting. But the ability to control behavior seems to be an empirical claim, and the evidence suggests that the evidence is mixed. For example, some studies show that more than half of all new products introduced in the market fail—a fact that should not be true if consumer behavior could be controlled by marketing. But there is a more subtle way in which consumer autonomy might be violated. Rather than thinking that marketing controls behavior, perhaps it might create the wants and desires on the basis of which consumers act. The observation shifts the focus to the concept of autonomous desires rather than autonomous behavior. This is much closer to the original assertion by Galbraith and other critics of advertising. 203Consumer autonomy is violated not when a consumer is made to behave in some way that they did not want, but when they do what they want, but those wants themselves have been manipulated. For example, following the disclosure that Russian agents attempted to influence the 2016 presidential election, the political debate often focused on whether or not any votes were changed as a result. Defenders of the president argued that there was no evidence that Russian interference changed any voter’s behavior or changed any votes. Citizens still voted for President Trump because that is what they wanted. But, shifting to the concept of nonautonomous desires, one would ask if the voters’ beliefs and wants, the basis of their behavior, were manipulated and therefore not fully autonomous. Viewing fake stories on Facebook about Muslims, about the Black Lives Matter movement, or about Hillary Clinton did not force anyone to act in any particular way, but the concept of nonautonomous desires raises the possibility that they were manipulated nonetheless. A helpful exercise to understand how desires might be nonautonomous is to think of the many reasons people buy the things they buy, consume the things they do, and why, in general, people go shopping. These questions are reminiscent of some issues introduced in chapter 5 concerning why people work. After certain basic needs are met, there is a real question of why people consume the way they do. People buy things for many reasons, including the desire to appear fashionable, for status, to feel good, because everyone else is buying something, and so forth. The interesting philosophical questions at this point are: Where did these desires originate? How much has marketing influenced these nonnecessity purchases? Surely, there can be such things as nonautonomous desires. These would be desires that are not voluntary, desires that we do not freely choose. A drug addict who desires more heroin would be a paradigmatic example of someone with a nonautonomous desire. So would the digital addict who cannot be away from his or her smartphone without feelings of anxiety and depression. The clearest examples of nonautonomous desires are found in addictions, as when an alcoholic “wants” another drink. This is something he or she desires, but the desire is not freely and rationally chosen. We can understand this point better by introducing the notion of first-order and second-order desires. My first-order desires are those wants that I just happen to have at any given time. But rational and conscious human beings are also able to step back from their desires and reflect rationally upon them. By stepping back in this way, we can ask such second-order questions as: Why do I want what I want? Do I really want this? This ability to step back (what Socrates would have called leading an examined life) is a central component of autonomy because it is an essential part of rational decision making. It may turn out that, upon reflection, I do not want (second-order want) what I in fact want (first-order want). The alcoholic wants another drink in one sense, but would renounce that desire were it not for his or her addiction. As a first approximation, we can say that an autonomous desire is one that is not rejected or repudiated upon rational reflection. Autonomous wants are first-order wants that are consistent with, and not denied by, second-order wants. Can marketing violate consumer autonomy by creating nonautonomous first-order wants? Philosopher Robert Arrington argues that it does not.7 Arrington argues that marketing influences us by appealing to preexisting and independent desires. Since marketing does not prevent consumers from renouncing those desires, we must assume that those desires are autonomous and conclude that marketing does not violate consumer autonomy. Let us return to digital addiction as an example. Critics might charge that the notification sound of an arriving text message violates my autonomy because it causes me to do something, namely, to immediately take out my smartphone and look at the screen. But Arrington would argue that this act is still autonomous because the desire to check for messages from friends is my own independent desire. The notification sound simply connects my pre-existing desire with the act of checking my smartphone. As long as I don’t regret and renounce my desire to stay in constant touch with my friends, the way an alcoholic would renounce the desire for another drink, I have acted autonomously. A closer examination suggests that this issue is more complicated. Several critics point out that the failure to renounce a desire is not, alone, sufficient to demonstrate that desire is autonomous. A fuller account of autonomous desires is offered by the philosopher Gerald Dworkin.8 Dworkin suggests two conditions for autonomy. The first, similar to Arrington’s discussion of renouncing one’s desires, is what Dworkin calls authenticity. A desire is authentic if it is not renounced or rejected by the person who has it. So, in our example, my desire to stay in touch with friends is authentic. That is, a first-order desire is authentic as long as there is no second-order desire that repudiates it. But Dworkin argues that in order for a desire to be fully autonomous, it must also be independently accepted by the individual. If an individual does not or cannot rationally reflect upon the first-order desires, then the fact that he or she doesn’t renounce it is not conclusive evidence that it is an autonomous desire. For example, the fact that I have no second-order desire to reject my strong motivation to check for text messages might be due to the fact that I have never thought about my smartphone use in a calm and thoughtful manner. To be fully autonomous, I need to critically reflect on my first-order desires. In Dworkin’s terms: Autonomy is conceived of as a second-order capacity of persons to reflect critically on their first-order preferences, desires, wishes, and so forth, and the capacity to accept or attempt to change these in light of higher-order preferences and values.9 Let us apply this analysis more directly to marketing. Dworkin would hold that for a first-order consumer desire to be autonomous, two conditions must be met. First, the consumer does not, in fact, renounce or repudiate the purchase. Such a condition explains the rationale behind many state laws that allow consumers a two- or three-day cooling off period in which they can unilaterally repudiate a sales agreement. Recognizing that consumers can be pressured or manipulated into a purchase agreement, many states allow consumers to back out of the agreement if, upon reflection, they choose to renounce the desire expressed in the agreement. A second condition on autonomous desires would require that consumers have the capacity to critically reflect on the desire and to accept it as their own. Consider 205the phenomenon that is described as therapeutic shopping, in which people go shopping to feel better or as a response to depression, or simply as entertainment. On such occasions, consumers purchase something because it makes them feel good or they like it. Of course, marketing plays a major role in designating shopping as entertainment or therapy. In Arrington’s view, the desire to feel good is autonomous as long as the consumer does not (soon?) come to regret the purchase and repudiate it much the way an alcoholic might wake up with a hangover and pledge “never again.” But Dworkin would argue that the desire is not fully autonomous unless the consumer critically reflects on that desire. A fully autonomous consumer would ask such questions as: Why do I shop to feel good? Is another consumer purchase really going to make me happy? Without asking such questions, the first-order desire to buy something is not fully one’s own and therefore not fully autonomous. Of course, defenders of advertising and marketing will point out that even if this analysis is correct and some consumer choices are not fully autonomous, nothing in any of this has shown that advertising and marketing are responsible for violating autonomy. All that has been shown is that some consumers do not always act in a fully self-conscious and reflective way. What does this have to do with marketing ethics? Two things: First, some critics have charged that marketing is partially responsible for the inability of some consumers to step back and critically reflect on these desires. Second, some marketing practices seem to target and exploit consumers who lack the capacity, or who have a diminished capacity, for making fully autonomous choices. The following section examines the question of target marketing aimed at vulnerable populations. 9.6 TARGETING THE VULNERABLE: MARKETING AND SALES The opening section of this chapter spoke in general terms of ethical and unethical ways of influencing people. Unethical modes of influence seek to bypass the person’s autonomy and voluntary decision-making process. One way to bypass an agent’s autonomy is to appeal to psychological motivations such as fear and guilt. That section also spoke of ethical and unethical ways of target marketing. A marketing practice that targets preexisting and considered desires was judged ethically appropriate. A marketing practice that targets potential customers on the basis of their fears, anxieties, or whims was attempting to manipulate the consumer and, therefore, was not ethical. This section will examine in more detail marketing practices that target vulnerable populations. Consider two examples of target marketing. In one case, based on market research supplied by the manufacturer, an automobile dealer learns that the typical customer for a particular model is a single woman who is under 35 years, college-educated, has annual income in the $50,000–$60,000 range, and enjoys outdoor sports and recreation. Knowing this information, the dealer targets advertising and directs mail to this audience. Ads depict active young people driving the car brand and enjoying outdoor activities. A second targeted campaign is aimed at selling an emergency call device to elderly widows who live alone. This marketing campaign 206depicts an elderly woman at the bottom of a stairway crying out, “I’ve fallen and can’t get up!” These ads are targeted at elderly women and their families. Are these marketing campaigns on an equal ethical footing? The first marketing strategy appeals to the considered judgments that consumers, presumably, have settled on over the course of their lives. People with similar backgrounds tend to have similar beliefs, desires, and values, and often make similar judgments about consumer purchases. We have no reason to believe that their consumer purchases are motivated by anything other than their considered judgments about their own interests. Target marketing in this sense is simply a means for identifying likely customers based on common beliefs and values. On the other hand, there does seem to be something ethically offensive about the second case. While there may well be a legitimate market for such devices, marketing directed to elderly women is not unethical in itself. This campaign aims to sell the product by exploiting the real fear and anxiety that many older people experience. This marketing strategy clearly tries to manipulate people by appealing to nonrational factors such as fear or anxiety rather than relying on straightforward informative ads. Yet it could be pointed out that no particular consumer is being exploited or manipulated, since each individual consumer is free to ignore the ads and not purchase the product. Further, defenders of this type of marketing might claim that the fear of falling while living alone is no more irrational than the desire of young women to drive sleek and sporty automobiles. Is there anything to the claim that elderly women living alone are more vulnerable than younger women and that this vulnerability creates greater responsibility to marketers? In general, do marketers have special responsibility to the vulnerable? To answer these questions, we need first to consider the concept of vulnerability. To be vulnerable is to be susceptible to some harm. People can be vulnerable in many ways. High blood pressure can make someone vulnerable to a heart attack or stroke. Leaving the keys in one’s car makes you vulnerable to car thieves. In general, a person is vulnerable if there is some factor that predisposes that person to a greater risk of harm than what is faced by others. Deciding which factors makes one vulnerable is both an empirical and a conceptual question. For example, to discover which members of a population are most vulnerable to heart attacks, one might conduct an empirical study to find those factors most highly correlated with heart attacks. But beyond these empirical questions, we also need to answer the conceptual question of what we mean by identifying someone as particularly susceptible to harm. Returning to our case, are elderly people living alone particularly vulnerable? The answer to this depends on what we mean by particularly vulnerable. In one sense, a person is vulnerable when he or she is susceptible to some specific physical, psychological, or financial harm. Elderly people living alone are susceptible to injuries from falls, to medical emergencies, to expensive health care bills, and to loneliness. Alcoholics are susceptible to alcohol abuse, the poor are susceptible to bankruptcy, single women walking alone at night are vulnerable to sexual assault, accident victims are susceptible to high medical expenses and loss of income, and so forth. What we can call general vulnerability occurs whenever someone faces unusual risk for harm. Pharmaceutical marketing, almost by definition, involves promoting drugs to people who are vulnerable in this sense.
There is a second sense of vulnerability in which a person is vulnerable as a consumer by being unable to participate as a fully informed and voluntary participant in the market exchange. Valid market exchanges make several assumptions about the participants: They understand what they are doing, they have considered their choice, they are free to decide, and so forth. What we can call consumer vulnerability occurs when a person has an impaired ability to make an informed consent to the market exchange. A vulnerable consumer lacks the intellectual capacities, psychological ability, or maturity to make informed and considered consumer judgments. Children would be the paradigmatic example of consumer vulnerability. The harm to which such people are susceptible is the harm of not satisfying one’s consumer desires and/or suffering the financial harm of losing one’s money. Elderly people living alone are not necessarily vulnerable in this sense. From this we can see that there can be two types of marketing that target vulnerable populations. Some marketing practices might target those consumers who are likely to be uninformed and vulnerable as consumers. Marketing aimed at children, for example, aims to sell products to customers who are unable to make thoughtful and informed consumer decisions. Other marketing practices might target populations that are vulnerable in the general sense as when, for example, an insurance company markets flood protection insurance to homeowners living in a river’s floodplain. Are either, or both, of such targeting examples ethically legitimate? As an initial judgment, we must say that marketing that is targeted at individuals who are vulnerable as consumers is unethical. This is a case of taking advantage of someone’s frailty and manipulating that for one’s own advantage. Clearly, a portion of marketing and sales targets people who are vulnerable as consumers. Just as clearly, such practices are wrong. But targeting consumers who are vulnerable in the other sense, as when a pharmaceutical company targets a drug to people with high blood pressure, is not unethical. Of course, there are difficulties in deciding who is vulnerable in this sense. Marketing activities target populations, not individuals, and other than children there is perhaps no population that we can identify as essentially vulnerable. Suggestions that the poor or a particular ethnic group, for example, is vulnerable as consumers because the people in the group are poor or Hispanic or African American, can be insulting, patronizing, and empirically false on the face of it. Nevertheless, targeting certain groups when one has reason to believe that a percentage of that group is particularly vulnerable as consumers is ethically dubious at best. Good test questions to ask include: Why target this group? What about them makes one think that they are likely consumers for this product? High-potency malt liquor and other alcoholic beverages marketed in the inner city is a good test case. Why might inner-city residents, people who tend (on average) to be poor and disenfranchised from most positions of social influence and power, be a good market for high-potency alcoholic drinks? It is difficult to imagine an answer other than the fact that marketers recognize that many people in such a situation seek to deaden their despair with alcohol.10 One way that this issue plays out involves groups that are vulnerable in both senses. Often people can become vulnerable as consumers because they are 208vulnerable in some more general sense. The vulnerability that many elderly have with respect to injuries and illness might cause them to make consumer choices based on fear or guilt. A family member grieving over the death of a loved one might make choices in purchasing funeral services based on guilt or sorrow, rather than on a considered judgment. A person with a medical condition or disease is vulnerable, and the anxiety or fear associated with this vulnerability can lead to uninformed consumer choices. An inner-city resident who is poor, uneducated, and chronically unemployed is unlikely to weigh the full consequences of the choice of alcoholic beverage. A number of marketing campaigns seem to fit this model. The most abhorrent (and stereotypical) example is the ambulance-chasing attorney seeking a client for a personal-injury lawsuit. An accident victim is vulnerable to many harms, and experiencing the stress of this situation is unlikely to make a fully informed choice about legal representation. Marketing campaigns that target the elderly for such products as supplemental medical insurance, life insurance, emergency call devices, funeral services, and insurance often target the fears, anxiety, and guilt that many elderly people experience. But just as there can be people who are made vulnerable as consumers because they are vulnerable to other harms, there can also be cases in which people become vulnerable to other harms because they are vulnerable as consumers. Perhaps this is the most abhorrent case of unethical marketing. Certain products—tobacco and alcohol are the most obvious examples—can make an individual vulnerable to a wide range of health risks. Marketing campaigns for these products that target people who are vulnerable as consumers seem ethically repugnant. This explains the particular public outrage directed at tobacco companies who target young people. It may also characterize marketing of alcoholic beverages in poor inner-city neighborhoods. Marketing malt beverages, fortified wines, and other alcoholic drinks to poor inner-city residents must acknowledge that many people in such situations are not fully autonomous consumers. (One might also think of marketing alcohol to young people in general and on college campuses in particular.) Many people in such situations drink to get drunk. They drink to escape; they drink because they are alcoholics. The discussion so far has concerned marketing practices in general. Defenders of marketing might point out that marketing targets populations and not individuals. This means that marketers cannot be held liable for decisions that any individual makes because any individual may choose not to buy the marketed product. Defenders would point out that it is difficult to attribute any direct causal connection between a marketing campaign and an individual consumer’s choice to buy a product. One cannot hold marketing liable because one cannot “prove” that it caused the purchase. Surely, such a claim would be disingenuous. If marketers really believed that marketing was causally ineffective in influencing consumer choice, they would undercut their own careers. If they truly believed this, then selling their services to businesses would be a straightforward case of fraud. The service that marketers sell to business either works or it does not. If it does work, if marketing can and does influence consumer choice, then marketing cannot disavow ethical responsibility 209for the consequences of those choices. If it does not work, and if marketers know that, then marketing professionals perpetrate a fraud on anyone who purchases their services. But even if there is some truth to the claim that marketers cannot be liable for individual choices that consumers make because they never target any individual consumer, a similar defense is unavailable in sales. In a sales situation, an individual salesperson deals not with a general population but with individual customers. Thus, the causal connection between the customer’s choice and the sales activity can be evaluated much more directly than in mass marketing cases. If we discover a situation in which a salesperson relies on appeals to fear or anxiety, for example, then we can only assume that this is intended to manipulate the person into a purchase. Because salespeople have a range of sales tactics and strategies available, and because they usually deal directly with individual customers, we can assume that the choice of sales strategy is based on a salesperson’s judgment about what will likely prove influential with this particular customer. Unlike what happens in the case of general marketing activities, sales occur in what we might call a feedback situation. In dealing with an individual, a salesperson (like anyone involved in an interpersonal exchange) continuously receives direct and tacit feedback from the potential customer. In light of that feedback, the salesperson can (and does if they are skilled in sales) adjust the sales pitch accordingly. Salespeople are explicitly trained to do this. The point of this is that a defense against unethical manipulation that might be used in marketing is unavailable in sales. The marketer might claim that any deception that occurs is unintentional; marketing aims at general populations and any deception that occurs was an unintended (although perhaps foreseeable) consequence. But sales practices that rely on deception, or that appeal to the nonrational fears, desires, and dispositions of customers, cannot make even this claim. Salespersons have a choice to stop the sales pitch if they reasonably believe that the customer is not fully autonomous in making the decision. They are better positioned to avoid manipulation and deception, and if they fail to do so, they should be accountable for that decision