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The Coming Sanctioning of Harm & the Marketing Industry’s Response

Updated: Mar 9, 2020

We are entering a potentially perilous phase for consumers and brands. The Supreme Court’s rightward lurch presages an era of continued deregulation, deference to the interests of corporations over the body politic, and, more ominously, a potential dismantling of the administrative state’s ability to exercise its authority via the interpretation and enforcement of laws. A recent ruling in the case of Gundy v. United States portends the striking down of “any statute that delegates too much power to [executive] agencies in the court’s subjective view.” The implications of this are enormous, as the ruling signals the Court’s willingness to effectively nullify the bureaucracy’s discretion in the implementation of programs outlined by Congress, thereby preventing experts in executive branch agencies from adapting to market changes and from leveraging new data to protect workers, consumers, and the environment. This shattering of the apparatus that enforces laws governing labor, the environment, and consumer safety would leave everyone more vulnerable to the interests of private industry. (This does not even begin to touch upon sectors of the market whose companies operate entirely in a regulatory gray zone, such as global platforms like Facebook.)

A cynic would state that this shows the desire of conservative jurists on the Supreme Court to curtail the progress made since the Progressive Era to protect the middle class from the abuses of industry by limiting the accountability of the ruling class. A more charitable interpretation would be that the Supreme Court’s conservatives want to weaken the power of an administrative state that is not accountable to the voters and to center regulatory power in the hands of Congress. Regardless of one’s interpretation, given the combination of the country’s deep polarization and the political system’s structural deficiencies, which render the Congress ineffectual, the result largely would be the same: a citizenry with less leverage and fewer means of recourse when faced with systemic abuse from private industry.

This represents an inflection point for many industries, marketing included. Doing what is within the bounds of the law is no virtue when those actions violate a shared vision of what is just.

The public perception of marketing as a market and cultural force is not terribly positive — a perception not without merit despite arguments to the contrary. From Bred-Spred to big tobacco, marketers have too often enabled rather than curbed industry’s worst impulses. And while marketers cannot be expected to act as industry watchdogs, if the era of deregulation becomes supercharged to the point where the market’s more predatory impulses are sanctioned, the marketing industry has an opportunity to re-orient itself, at least in part, as an advocate for the consumer. At first blush it may seem counter-intuitive for brand strike teams to moonlight as bulwarks of the public good, but examples already abound:

  • The efforts of cause marketing agencies and the work of the Ad Council cannot be dismissed by even the most jaded among us.

  • The social media advocacy organization Sleeping Giants, started by copywriter Matt Rivitz, has done amazing work in pressuring brands to stop supporting outlets that spread bigotry and fear.

  • The best campaign of the last decade, in our humble opinion, is the #LikeAGirl campaign from Always, part of a new wave of empowerment-advertising that aims to illuminate rather than shame. (For those who find #LikeAGirl sanctimonious, please check out this spot from HelloFlo for their hilarious and brutally honest take on the same issue.)

  • Marketers are taking greater pains to be mindful of how consumer data is utilized so that user privacy is not violated.

This list is by no means complete list, and these and other examples certainly don’t absolve Madison Avenue of its faults, but it is illustrative of the fact that working for the good of the consumer is working for the good of brands. The industry should continue down this path. The tsunami of deregulation and judicially sanctioned private-sector abuses that could be on the horizon may tempt it to stray, let alone a recession or a fundamental shift in how cosmopolitan elites flex their political muscles through economic means, which makes it all the more vital that the industry stays the course. As institutions break down, inequality increases, and cynicism spreads, it would be ironic (and a point of pride) if one of the industries perceived to be one of the most cynical emerges as an example of integrity and as a stalwart champion of consumers’ well-being.


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