A New Federalism
A New Federalism: National and State Cooperation
in the Regulating of Green Advertising . . . and Beyond
AEJMC
Special Topics
The Congress shall have the power to regulate commerce with foreign nations,
and among the several States, and with the Indian tribes. (Article I, Section 8)
In July of 1995, Minnesota Attorney General Hubert "Skip" Humphrey III
circulated a memorandum titled "Warning to All Internet Users and Providers."
The warning was not only a notice that those using the Internet[1] for
commercial transactions should be wary, but also a notice that the state of
Minnesota was prepared to defend its consumers against scam artists, no matter
where the prepetrator resided (http://www.state.mn.us/ebrand/ag). By January,
1996, several states already were active in tracking down and prosecuting
deception and fraud involving advertising on the Internet (Eckenwiler).
Given that the Internet sees political boundaries as something less than even
"speed bumps," these various attorneys general must know the actions they are
taking against online fraud in their states are affecting commerce occurring
outside of their states. Yet, that such commerce occurs outside of their states
does not, as will be shown, prohibit de facto their attempts to regulate it.
It should be noted that during this same period, the Federal Trade
Commission's Bureau of Consumer Practices had been holding hearings on how to
proceed against online fraud. The FTC's first action against this new type of
fraud had occurred in October of 1994 (FTC v. Brian Corzine), but, as an FTC
commissioner (Varney) involved in the action against fraud involving the posting
of a commercial email[2] notice admits, was more a matter of "luck" and
circumstance than an indication the FTC was ready to move forward boldly in this
area. Indeed, it was not until March of this year that the FTC moved again, this
time against fraud involving commercial websites.[3]
At the same time, the public's awareness of this new commercial form was
increasing. New websites were opening D a new one every minute (Schwartz) D and
more users logged online at ever increasing rates. This added to the pressure on
the FTC to develop guidelines and bring cases . . . and it was clear that the
states weren't going to wait. Illinois filed action against online sellers
earlier this year (Eckenwiler) and the attorney general in Massachusetts has
made threats of similar actions.
If one proposes that the only motive of a state action is a state solution,
the actions of Minnesota, Illinois and Massachusetts would appear ultimately
without purpose: none of these attorneys general would expect his actions to
resist a challenge in federal district court. However, state solution may not
be the only purpose of state action and, in these cases, clearly is not.
Sometimes a state may take an action in order to prod another policy actors,
such as the Federal Trade Commission, into action. Thus, the actions of the
states in attempting to curb online deceptive commercial speech has a precedent
in actions steps taken against the advertising of environmental claims (so
called, "Green advertising") earlier in the decade.
The purpose of this paper is to outline the boundaries of a New Federalism,
describe how its dynamics may function, and suggest how it will be applied in
the future relations in the area of advertising regulations between the national
and state governments D specifically the Federal Trade Commission and the
National Association of Attorneys General. To accomplish this, the author will
examine how the national and state commercial speech regulators developed a new
relationship between 1987 and 1992, specifically in the area of the regulating
of environmental claims, otherwise called "green advertising." As such, it is
important that the basis of this new relationship be outlined, how the
relationship evolved and where it stands today.
This paper is not intending to re-address the issues of green advertising so
sufficiently discussed elsewhere, except where such discussion adds to an
understanding of the motivations in the actors and stakeholders involved.
Further, this paper will not delve at any great depth into the theoretical basis
for the regulation of commerce within and without the states. While both of
these areas could have some impact on the relationship being advanced by this
paper, it is stated now that other factors, principally the relationships of the
primary actors at the national state levels, have a greater impact and that
these factors, unlike the former, are not discussed elsewhere.
Structurally, this paper first will examine the history of the FTC in
relation to the regulation of interstate commerce, and outline the changes the
agency underwent during the 1980s that fomented the described state responses
later in that decade. The second section will examine the relationship between
the FTC and the state attorneys general, focusing less on the institution of
NAAG itself and more on the interpersonal relationships that developed between
certain FTC commissioners employees and the state attorneys general as a whole.
Finally, a basis for future cooperation between the FTC and the states will be
discussed, with some predictions of possible state action in the face of
perceived national inaction.
The FTC and the Regulation of Deceptive Speech
For more than 35 years, protecting consumers from deception in commercial
speech has been a high priority for the Federal Trade Commission (15 U.S.C.
41-58 (1994)). However, Congress never defined "deceptive," choosing to leave
this up to the FTC and the courts. That definition has been shaped by two
realities, the first political, and the second, judicial.
First, led by a commission of five political appointees, who, in turn appoint
each of the several division heads, the agency has followed the political agenda
of the majority of commissioners both in the types of cases investigated and the
very definition of deceptive commercial speech (Strenio, Kinnear and Root, Baer,
Jones, Varney, Warder 18 Oct. 1995). Earlier in the century, the only actions
the FTC investigated involved competitive claims. Indeed, the commission was
formed in 1914 not to root out deceptive business practices, according to George
Rublee, but to focus on antitrust problems (669). The inclusion of the "public
interest" clause in Section 5 of the FTC Act was a "fortuitous by-product"
(Millstein 450) that later gave the commission some grounds for injecting itself
into areas involving business practices.
However, it wasn't until 1963 that the commission institutionalized
protection of consumers with a special bureau,[4] and even then the FTC lacked
some of the weapons necessary to aggressively pursue perpetrators of deceptive
commercial speech. For instance, it wasn't until the passage of the
Magnuson-Moss Warranty-Federal Trade Commission Improvement Act of 1975 that the
FTC had the power to use its own attorneys to file court actions (as it has done
in the recent online cases) rather than relying on the Justice Department has it
had to in the past. This was critical because it meant the FTC no longer had to
convince the Justice Department that a case was sufficiently important to
require the expenditure of that department's resources. The act also provided
that the commission could seek industry-wide action through the issuance of
trade rules rather than work case by case, as well as pursue civil penalties,
and, in cases of a dishonest or fraudulent act
y break or reform a contract
y force a return of money or property
y levy monetary damages
y force public notification
y and seek "such relief as the court finds necessary to redress injury to
consumers on other persons, partnerships and corporations. (Rockefeller 30).
But Magnuson-Moss also reflected an increased interest on the part of
Congress to energize the FTC to root out deceptive commercial speech aimed at
consumers rather than competitors. The increased activity of the FTC in the
period of 1968 to 1972 was sufficient to encourage the advertising industry
itself to re-energize its self-regulatory activities (Miracle 26), and resulted
eventually in the FTC reversing itself and encouraging competitive advertising
as a way of giving consumers more information.
However, the upward spiral of FTC activity would cease in the early 1980s and
nothing represents the commission's change of heart better than the Deceptions
Policy Statement of October 14, 1983.[5] Pushed through by then-FTC Chairman
James C. Miller III, an appointee of President Ronald Reagan, this statement
narrows significantly the basis for commission action. Deception, by the Miller
rule, is "material representation that is likely to mislead consumers acting
reasonably in the circumstances to their detriment."[6] A three-part test for
deception applying the Miller rule was developed in International Harvester the
following year. A deceptive act must first be shown to be an act or omission
likely to mislead consumers. Second, consumers must be interpreting the message
"reasonably." Finally, the claim in the message must be "material," that is, it
must be "likely to affect a consumer's conduct or decision with respect to the
product" (1056).
Prior to Miller, there was no requirement to establish the psychological
state of the consumer or judge an advertisement on its ability to deceive "a
consumer acting reasonably." The Miller rule was seen by some as more
restrictive and a symptom of an agency in retreat from the aggressive pursuit of
deceptive commercial speech of the previous decade (Kinnear and Root, Strenio,
and Friedman).
The Rise in State Action and Green Advertising
In the midst of this perceived retreat of the FTC from an activist role in
controlling deceptive advertising came a new type of advertising that seemed to
some filled with deceptive potential: green advertising. The environmental
movement of the 1970s had gained strength and was now making itself felt in the
commercial arena. Advertisers were promoting their products as being "ozone
friendly," "easy on the Earth," and a host of other similar claims (Coffee,
Owen, Azcuenaga, and others). Consumers were clearly interested in such claims,
with survey after survey suggesting that a majority felt environmental claims
helped them in purchasing decisions (Robbs). Yet the FTC was not perceived as
being interested in this area. Indeed, until the commission changed its
complexion with the appointment of a new FTC chairman (Janet Steiger, by
President Bush in 1989) the FTC reflected the view of Commission Mary Azcuenaga
who continued to argue in 1990 that the FTC had no expertise to set
environmental standards for such advertising.
The state attorneys general, perceiving a retreat by the FTC, started to act
on their own to protect consumers from deceptive advertising. Many states had
followed the national lead in the 1960s in establishing consumer protection
offices, and these offices increasingly had moved against scam artists within
their own states (Miller). In the 1980s, the states through the National
Association of Attorneys General were conducting workshops on how to protect
consumers. These workshops in the beginning did not include any representatives
from the national government. Steven C. Baker, then in the FTC chairman's
office, now head of the FTC's Chicago regional office, was one of the first to
start attending NAAG conferences. "I'd have to say the level of animosity I
felt toward the FTC was very high," according to Baker. "It was felt that the
FTC had no faith in the states, had abandoned the states, and that the only time
the states heard from the FTC was when there was an objection," Baker said.
"There was extreme bitterness directed at the FTC because the states felt the
agency was paternalistic: the FTC had abandoned consumers and, at the same time,
spent all its time criticizing the states." In addition, Baker said, "it was
obvious they weren't used to seeing FTC personnel at their conferences.
During this period the states were looking into telemarketing rules, airline
advertising and rental car procedures. The most active states, in Baker's
opinion, were Wisconsin, Minnesota, Mississippi, California, Texas and New York,
and all but Mississippi would take on deception in Green advertising later in
the decade. In the meantime, the FTC was seen as moving slow if at all in all of
these areas, at times attempting to block state action. "There was some
perception by the states that the FTC had been captured by business" and no
longer was interested in protecting consumers, Baker said.
While the states (and to a lesser extent the FTC) had been working on
establishing some rules for telemarketing, the Green advertising problems were
different in ways that seemed to cause more trouble for everyone concerned,
mainly because of the vocabulary: recycled, biodegradable, ozone friendly. All
of these terms and many more had not been defined and therefore were used to
mean various things by various advertisers. For example, when a plastic bag
advertiser claimed that its bags would biodegrade in sunlight in 30 days, it
could be considered deceptive if it were not pointed in the advertising that the
bag really just "fell apart" if left exposed and that most such bags were not
left exposed to sunlight anyway, they were buried in landfills (FTC File No.
902-3111 (1992)).
If standards for these terms were to be set, it was the contention of some
FTC commissioners that it was the U.S. Environmental Protection Agency's role to
do so (Azcuenaga). However, Baker noted, the EPA was not prepared to act
unilaterally to set advertising guidelines. In the face of this national logjam,
the states (mainly 11 of the largest and most active)[7] were off and running in
the late 1980s, establishing a task force to develop standards for regulating
green advertising, as well as prosecuting cases.[8] Green I, the first set of
state guidelines on green advertising, was adopted by the participating states
in 1990, followed shortly by Green II, a revision issued a year later. By 1995,
18 states would have passed, or have up for consideration, laws regulating green
claims (Robbs).
The basis for the state action, according to Tom Miller, Iowa Attorney
General, was the adversarial relationship that had been created by James Miller,
then chair of the FTC. "It was part of his agenda to change the law concerning
deception and change the law, generally, concerning enforcement of consumer
rights. Not surprisingly," he said, "(some of) the states had a totally
different view" and resisted the Miller rule.
After James Miller left the FTC for the Office of Management and Budget early
in Reagan's second presidential term, Terry Calvani was the temporary chair of
the FTC. "There was some interest on Calvani's part to work with the states and,
in fact, he and I and a couple of our staff members got together to discussed
how we might work together on some things" in 1985, Miller said. But this thaw
was not to last. "Dan Oliver was appointed the chairman soon after an he was
less interested in the states. We held a few meetings, but there was no real
commitment from Oliver and it never went anywhere," Miller added.
Meanwhile, the states had already been developing a consensus model for
working together. "If one state is ahead of the rest in enforcement. it probably
doesn't mean much, unless that state is California, New York or Texas and
they're committing a lot of resources to it," Miller notes. In general, the
states instead chose to build a consensus for mutual action, "that for better or
worse would bring more of the states on the fringe back into the group."
By the time Janet Steiger was appointed to chair the FTC in 1989, the states
had developed their own independent agenda in Green advertising and were
actively working to establish a set of green guides (which would be known as
Green I and Green II). "We (the states) were wary of Steiger, because, after
all, this was a Republican administration. But it was clear almost immediately
that she was moving the agency back to a mainstream position . . . and consensus
building started to occur," Miller said.
The FTC Response: When Federalism Works
What the prior discussion should reveal at this point is that the FTC has
been a reflection of the chairman's political and economic philosophy at least
since the inception of the agency. Each chair has turned (or maintained) the FTC
toward a particular political beacon, reflecting, in general, the political
winds set by the President. In this regard, Miller and Oliver were no different
from their predecessors. Calvani might have been one of those rare chairs who,
not unlike the judicial "surprise" engendered by a Supreme Court justice who
rules other than expected, might have pushed the FTC out of its doldrums. He
never had that opportunity.
Thus, when Steiger was appointed chair of the FTC, she inherited an FTC
relationship with the states that was, in her words, "in disrepair." Given this,
she had many option available to her in responding to the growing clamor by the
states and national advertisers for green advertising guidelines. What she
chose would change the relationship between the FTC and the states and create a
new type of federalism far different from that promoted by President Reagan.
Among the option available to Steiger, the most obvious was to continue the
existing policy of FTC oversight without acknowledging the role of the states.
"It was quite possible that she could have done this," one FTC staffer said
(Ritner), but "it just wasn't her style. She wanted to do something about the
growing mess, what with the states acting on their own without any sort of
national participation. She felt inaction would only make matters worse."
Another option was preemption, not surprisingly a four-letter word among the
state attorneys general, according to Miller. While it is not in the scope of
this paper to examine the length and breathe of national preemption of state
laws, one case might be pointed to as particularly meaningful in this
discussion.
In 1983, a New Jersey woman and her husband filed a court action against
three cigarette manufacturers for damages to her health arising from strict
liability, breach of expressed warranty, and negligence (Cipollone). The
defendants claimed that the Federal Cigarette Labeling and Advertising Act
preempted all of the plaintiff's common law claims. The U.S. Supreme Court
agreed in part, but held that the preemption did not extend to fraudulent
misrepresentation or conspiracy to misrepresent, express warranty, negligent
research or testing (if not based on advertising or promotion), or pre-1969
failure to warn.
At the heart of this debate is the so-called "Supremacy Clause" in Article VI
of the U.S. Constitution:
This Constitution, and the laws of the United States
which shall be made in pursuance thereof . . . shall be the supreme
law of the land . . . anything in the Constitution of laws of any
State to the contrary notwithstanding. (clause 2)
This is not to suggest that the national power is complete. The United
States Supreme Court ruled in Maryland v. Louisiana (1981) that there are some
areas of authority which have been traditionally left to the states and cannot
be subsumed by the national government unless there the intent is "clear (and)
manifest" (Rice v. Santa Fe Elevator Corp. (1947)). The national government
must show, the Court has ruled, that "the nature of the regulated subject matter
permits no other conclusion" than a national preemption.
Preemption may be upheld if the court find that the national law is so
pervasive or the national interest so compelling that the courts can surmise
that Congress intended the national government to "occupy the field" to the
exclusion of the states. The courts may also find preemption valid if the state
law, in fact, conflicts with the national (Rice at 230).
Yet its is clear in interviews with the policy actors at the time, there was
no real intent or desire on the part of the FTC to impose a preemption, and a
real doubt that such a preemption would hold. For instance, in California State
Board of Optometry v. FTC (1990), the District of Columbia Circuit Court ruled
that the FTC had overstepped its bounds in promulgating rules in conflict with
state statutes (982). Again in California v. ARC (1989), the U.S. Supreme Court
explicitly states that a "presumption exists against finding federal preemption
of state law in areas traditionally regulated by states" (1661).
At the same time, the courts have found that the States lack standing in
attempting to apply federal laws to transgressors. The U.S. District Court in
Kansas in Re Wyoming Tight Sands (1988) and the U.S. Supreme Court in Kansas and
Missouri v. Utilicorp (1990) ruled clearly that the states cannot use national
antitrust law to pursue defendants across state lines.
Thus, it would seem the courts were not a serious option for the states and
national actors to resolve their differences over Green laws, nor, based on
interviews with some of the main policy actors, was the option apparently
seriously explored.
That is not to say that the states and business weren't actively courting the
FTC to adopt standards, even while the working group was meeting on the issue.
In March of 1990, NAAG issued a Resolution Supporting Development of Uniform
Guidelines for Environmental Claims. Later that year, Mobil Chemical Co. offered
a Petition for the Federal Trade Commission Guides on Environmental Claims. Even
the administrator of the Environmental Protection Agency, William K. Reilly, got
into the act, suggesting the FTC ought to "begin defining terms like
'recyclable."
However, for reasons that will be noted below, the pressure that was being
applied did not act to disrupt the activities of the working group, for several
central reasons.
The Role of Steiger
"Janet really had the idea that she wanted to move consumer protection
enforcement back into the mainstream and very much wanted to work with the
states. So the existing (but dormant) FTC working group was the logical vehicle
for that to happen," Miller said. Miller was president of NAAG during this
crucial period, from mid 1989 to mid 1990. "We were looking on something to work
together on when the green advertising issues came up."
"It was a meat and potatoes kind of issue," said Baker. " Steiger made it
clear she wanted the staff to work with the states and we knew there were a lot
of common areas, so we used the old working group established by Calvani and
focused on those areas not in dispute.," Baker added.
It was critical that neither group focus on those aspects of Green
advertising that would be difficult to resolve. The motivations for the national
and state actors were clear:
1. More cooperation would lead to more enforcement, although in the
desired amounts (for some, too much; for others, too little);
2. Less cooperation would lead to two standards: one national and one
state;
3. No cooperation would lead to Balkanization of regulations, with
each state having its own, at times, conflicting statutes.
Four elements were present that made the cooperation possible: First, the
working group was untracked from other FTC and state activities. Second, there
was a directive from the top (Steiger) formally authorizing and encouraging
interaction (including data sharing) with the attorneys generals. Third, there
was to be no public discussion of the activities of the working group to avoid
politicization. Fourth, the discussion would be consensus-building and areas of
known disagreement would be avoided initially in order to give the group a
chance to build a basis for working together.
It would have been politically disastrous for the FTC to attempt to suppress
state action, even if in the guise of wanting to forestall legal action until a
standard could be developed. "There was a real possibility that the state
legislatures would head off on their own, which they were doing and that the
entire situation would be more confusing," Baker said. Thus it was decided, he
said, that the working group would not attempt to suppress any ongoing
activities, such as adjudication or lawmaking, that were occurring at the state
or national levels. The working group would be placed in its own track, apart
from the activities of any of the actors working alone. Thus, Baker, Steiger and
Miller noted, the group was allowed to develop its own culture.
The leadership of Steiger was critical to allowing the actual policy actors
the time to work in the group. "Steiger encouraged us to develop working
relationships with the AGs. If this sort of directive had not come from the top,
as it had, I'm not sure the cooperation would have happened," Baker said. He
noted that both the state staffs and FTC staffs had full caseloads and would
have been reticent to spend time on the project without a directive to do so.
"Lacking that Commission and Bureau directive behind it, the staff would have
has less contact and would less likely to do the extra work of cooperating."
Keeping the discussion out of the public eye was not an effort to hide as
much as it was simply to avoid the pressures inherent in public policy. Thus the
working group's role was downplayed as more of an opportunity to share
information, rather than a policy making operation, Baker said.
The members of the group D representing the active states that put together
Green I and II, a representative from the U.S. Justice Department (James Rill),
and the FTC staff (Barry Cutler, head of the FTC's Bureau of Consumer
Protection, played a significant role) D knew there were areas of significant
disagreement. "We agreed in those early years to stay away from area of
disagreement with significant emotion attached to them. Over time we could then
discuss these areas without the emotion and bitterness of the 1980s," Baker
said.
Eventually the working group grew to include 27 members, including
representatives from the EPA and Justice Department, and routine communication
was occurring between the states and the FTC, Steiger said. The efforts extended
into other areas, such as developing octane, used car and funeral trade rules,
all of which, Steiger added, are activities that occur on local level. "The
common goal for everyone involved was a need to get ahead of the fraud curve,"
Steiger said.
The cooperation also led to more data sharing. "We looked closely at what we
could share because we all understood that good information was a key" in
fighting fraud, she said. Today the NAAG and FTC share an extensive database of
fraud activities and the state attorneys general are allowed (by Congressional
statue) standing to sue in federal court using the FTC's rules.
In July of 1992, the FTC published its Guides on Environmental Marketing
Claims. One commissioner, Azcuenaga dissented with the rules, arguing, among
other things, that the FTC was not the right body to establish environmental
standards and that the guidelines were written in such a way as to appear to
have the force of law, which they did not. Azcuenaga argued that rather than
attempting to develop guides, the FTC should instead "simply bring more cases,"
and allow the accumulated case law build a standard (deception, for instance).
The central difficulty with this approach is that the states would have pursued
their own paths, establishing their own case law. The patchwork of laws would
make national environmental claims difficult to make, with the end result that
there would be little or no environmental advertising.
Indeed, these FTC guidelines were intended to provide the states with a
framework that they could adopt voluntarily. "It (the guides) didn't have
everything everyone wanted and some areas weren't agreed upon by everyone going
in, but in the end, we could all agree that these would be a solid framework,"
Baker said. FTC Commissioner Owen called the "reinvigorated cooperative
relationship" with the states "pivotal in striving toward a uniform governmental
response to governmental claims."
C. Lee Peeler, Associate Director for Advertising Practices in the FTC's
Bureau of Consumer Protection, in 1995 noted that the guidelines were "working
very well," that the industry was following the rules, and the states were
using the guides as a model for developing their own rules (Antitrust). Indeed
last year, the California Assembly repealed its green rules law and replaced it
with one in conformance with the FTC guides.
Conclusions: A Very New Federalism
When the FTC issued its Green Guides in 1992, they were hailed by Reilly at
EPA, the state attorneys general, and business and environmental groups. Steiger
in October of 1992 could confidently state that the rules had received
"overwhelming support," not the least of which was from the stakeholders that
had been drawn into the development of the guides.
As Kingdon has noted, sometimes making significant changes in public policy
rests on taking advantage of an opportunity (175). To a degree that is exactly
what Steiger did in this case. She brought the activist states into a
partnership where consensus was stressed and progress could be measured not only
in the issuance of the guides, but the degree to which the varying parties
bought into the results.
So what are the elements of this New Federalism?
1. Information sharing.
If this is the Information Age, the ability of any one group to manage all of
the information available concerning advertising claims in any one subject area
is certainly called into question. Yet, every agency, whether national or state,
recognizes the value of information. Thus there is a mutual need of the groups
for more of a commodity (information) that each has some of, and each needs
more.
2. State Autonomy of Regulation.
In an era of diminishing national resources, the tide of redistributive and
to some extent distributive policies may recede, leaving the largely ignored
area of federalism: regulatory policy. As the states flex their muscles in areas
where the national agencies either have abandoned or cannot afford to oversee,
there will be increased opportunities for New Federalism.
3. Diminishing National Regulatory Resources.
As national budgetary dollars tighten, some regulatory functions may be
abandoned (e.g.: Interstate Commerce Commission) while others face increasing
stakeholder agitation (e.g.: online commercial speech). While it is clear that
the FTC does not have the dollars to pursue online deceptive speech, it does
that the agenda setting control to bring its new partners (the state attorneys
general and consumer groups) into play. By bringing the states into the
enforcement of its Green Guides, the FTC has essentially extended its staffing
without violating its spending authority. National and state cooperation will be
more important in this era.
4. Cross-Agency Cooperation.
One of the distinguishing features of the Green Guides was the participation
of several national agencies in the process. It would be hoped that the success
of this project could be replicated by other agencies, such as the EPA working
with state EPAs, as well as national agencies routinely cooperating with each
other. While there is no evidence that this does not happen, the specific
notation of such cooperation in this case by the principal actors would success
that this sort of cross-agency cooperation is not an every day occurrence.
Areas of Future Research
Several areas of possible future research are suggested by this work. It
would be valuable to know more about the day-to-day operations of this working
group, including more specifics on who actually participated, access to any
minutes kept, etc. Furthermore, the views of more of the attorneys general on
the future role of the FTC versus the FTC staff's view of the future role of the
attorneys general would be interesting. Do these groups see each other in the
same terms? Finally, it would be interesting to establish, if possible, how
these guides are performing. How many states have adopted them. What cases have
been brought? And are these rules standing up to court challenges better than
might be predicted?
Cited Works
Azcuenaga, Mary L. FTC Commissioner. Dissenting statement. CCH 50,088.
---- "Deceptive Environmental Claims: How Should The Federal Trade
Commission Clean Up Advertising Pollution?" Address to the Cosmetic,
Toiletry and Fragrance Association, 15 Nov. 1990.
Antitrust & Trade Regulation Report. "FTC is Set to Review Green Labeling
Guidelines." 20 Apr. 1995. 505.
Baker, Stephen. Director of FTC Regional Office, Chicago. Telephone
interview. 28 Mar. 1996.
Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992)
Coffee, Brett B. "Environmental Marketing After Association of National
Advertisers v. Lungren: Still Searching for an Improved Regulatory
Framework. Fordham Environmental Law Journal 6:1 (Spring 1995). 297.
Downs, Thomas. "'Environmentally Friendly' Product Advertising: Its Future
Requires a New Regulatory Authority." American University Law Review. 42:3
(Fall 1992). 155.
Eckenwiler, Mark. "States Gets Entangled in the Web." Legal Times. 22
January 1996: S35.
Federal Trade Commission Act of 1914, ch. 311, 38 Stat. 717 (codified and
amended at 15 U.S.C. 41-58 (1994).
FTC v. Brian Corzine, CIV-S-94-1446 (1994)
Harris, Richard A. and Sidney M. Milkis. The Politics of Regulatory
Change: A Tale of Two Agencies. New York: Oxford UP, 1989.
Hoch, David, and Robert Franz. "Eco-Porn Versus the Constitution:
Commercial Speech and the Regulation of Environmental Advertising." Albany
Law Review. 58 (1994). 441.
International Harvester, 104 FTC 949 (1984)
Jones, Mary Gardiner. "The Federal Trade Commission in 1968: Times of
Turmoil and Response." Journal of Public Policy and Management. 7 (1988),
1-10.
Kansas and Missouri v. Utilicorp 110 S.Ct. 2807 (1990)
Karns, Jack E. "The Federal Trade Commission's Evolving Deception Policy,"
University of Richmond Law Review, 22:1 (1988) p. 399-401.
Kingdon, John W. Agendas, Alternatives, and Public Policies. New York:
HarperCollins. 1995.
Kinnear, Thomas C. and Ann R. Root. "The FTC and Deceptive Advertising in
the 1980s: Are Consumers Being Adequately Protected?" Journal of Public
Policy and Management. 7 (1988), 40-48.
Maryland v. Louisiana (451 U.S. 725, 746 (1981))
Miller, Thomas. Iowa State Attorney General. Telephone Interview. 28 Mar.
1996.
Miracle, Gordon and Terence Nevett, Voluntary Regulation of Advertising: A
Comparative Analysis of the United Kingdom and the United States.
Lexington, MA: Lexington Books, 1987.
Owen, Deborah K. FTC Commissioner. "Federal Trade Commission Activities
Relating to Environmental Marketing." Address before Association of
National Advertisers. 25 April 1991.
Pfaffenberger, Bryan. Internet in Plain English. New York: MIS Press. 1994.
Price, Elizabeth C. "Torts -- Federal Preemption of State Common Law --
Federal Cigarette Labeling and Advertising Act." Tennessee Law Review.
60:3 (Fall 1992). 243.
Raines, June Camille Bush. "Environmental Law: The Green Giant:
Environmental Marketing Claims." Oklahoma Law Review. 45:4 (Winter 1992).
689.
Re Wyoming Tight Sands 695 F. Supp. 1109 (1988)
Reilly, William K. EPA Administrator. Address to the National Press Club.
12 Sept. 1990.
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)
Ritner, Kathleen. Staff attorney, FTC. Telephone Interview. 5 Mar. 1995.
Robbs, Brett. "Saving Endangered "Green" Ad Claims." Advertising Age. 22
May 1995. 19.
Rockefeller, Edwin S. Deskbook of FTC Practice and Procedure. NYC:
Practising Law Institute, 1976.
Schwartz, Evan I. "Advertising Webonomics 101." Wired, 4:2 (February
1996), 74-82.
Steiger, Janet. FTC Commissioner. Personal Interview. 15 Mar. 1995.
Strenio, Andrew J. Jr. "The FTC in 1988: Phoenix or Finis?" Journal of
Public Policy and Management. 7 (1988), 21-39.
Varney, Christine A. FTC Commissioner. Personal Interview. 15 Mar. 1996.
Warder, Nancy. APD attorney. Telephone interview. 18 Oct. 1995.
[1] Online communications generally means the large computer-based system known
as the Internet. The Internet is a specific network of "thousands of physical
networks that can exchange data by means of the TCP/IP protocols . . . (It is)
the computer space created by the Internet's technical means of connecting
dissimilar networks so that they can exchange mail and data quickly and
transparently," that is, without the users aware of the complex coding behind
the transfers. There are several methods or protocols for transferring data
within the Internet, of which the World Wide Web (and its hypertext markup
language (HTML)) is perhaps the best known. Generally considered part of the
Internet, Usenet was created by students at UNC-Chapel Hill and Duke, and is a
cooperative effort of computer users. These computer users have established
newsgroups that automatically share information posted to specific computers
that then forward the information to all members of the newsgroup. See
Pfaffenberger, 404.
[2] This is a computer-based communication in which an electronic letter is
transmitted over the Internet to one or more other persons using their unique
email addresses. Recipients do not get this mail until they log on to their
computer system. See Pfaffenberger, 140.
[3] Websites, usually comprised of several "pages" or linked files of
information, are themselves computer files stored on computers that are
connected to the Internet. The "pages" are written in a HTML. A visitor to the
website actually downloads the files from the server, displaying them on his or
her computer. Calling websites "homepages" is inappropriate, since a website can
contain hundreds of pages. See Pfaffenberger, 201.
[4] Formed in 1963, the Bureau of Consumer Protection represents the desire of
the Kennedy administration to beef up this area of the FTC's activities. The
FTC, since the passage of the Wheeler-Lea Act in 1938, had the potential for
acting to protect consumers, but had not done so. Prior to the Wheeler-Lea Act,
the FTC could not act for a specific consumer, but instead had to show that a
business competitor was being harmed by an activity. While the efforts of the
Kennedy administration were largely blunted by industry interests, the move of
the FTC toward more consumer protection was, nonetheless, started. See Harris
and Milkis.
[5] Interestingly, the policy statement was passed by the FTC, 3-2, on
Commissioner David A. Clanton's last day in office, prompting dissenting
commissioners Patricia P. Bailey and Michael Pertschuk to suggest that the
deviation in policy outlined by the statement was railroaded through the
commission by the chair (46 Antitrust & Trade Regulation Reporter 372 (1 Mar.
1984)).
[6] Previously the standard of the federal courts had been to focus on the
"tendency or capacity" of an advertisement to deceive. Miller's pro-industry
redefinition put the focus on interpretation of consumer behavior and away from
the actions of the advertiser. See Karns.
[7] California, Minnesota, Utah, New York, Florida, Texas, Tennessee,
Massachusetts, Missouri, Washington, and Wisconsin. Later Iowa would be very
active as well.
[8] There are dozens of cases brought by the states. For an in-depth discussion
of these, see Coffee, Hock and Franz, Downs, and Raines.
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