The Commission has released a Notice of Inquiry and Notice of Proposed Rule Making (NOI/NPRM) in which it expresses concern about the practice of "embedded advertising"- and its two primary components, "product placement" and "product integration"- in current programming, particularly as those practices implicate the sponsorship identification rules.  According to the Commission, "product placement" involves the mere use of commercial products as props, while "product integration" entails the inclusion of such products in the dialogue and/or plot of a program.  Various trade press sources have reported that, with the increased use of digital recording devices, television audiences in particular are affirmatively skipping traditional commercial breaks; accordingly, advertisers, with the cooperation of program producers, have gravitated toward embedding techniques to assure access to the audience.  The Commission is concerned that such embedding, when combined with established sponsorship identification techniques, may not adequately inform the public of the nature – or even the fact – of the embedded advertising.

The NOI/NPRM is short on detail.  It simply describes the concerns which have been expressed by some groups about embedded advertising, and seeks comments on those concerns.  For example, how extensive is the practice of embedding?  Are existing sponsorship ID rules effective with respect to embedding?  Interestingly, the Commission does include, in the NPRM portion of the item the suggestion that sponsorship ID notifications on TV be required to be of a certain minimum size and on-air for a particular length of time.  The NPRM does not indicate what size/length the Commission might have in mind, although it does allude to political broadcasting requirements, which specify lettering at least four percent of the vertical picture height and duration of at least four seconds.

The NOI/NPRM also specifically mentions the possibility of "concurrent" sponsorship ID’s, by which it presumably means some disclosure to be made to the audience simultaneously with the embedded product reference.  How such concurrent mentions might work for radio programming (and yes, the NOI/NPRM is directed to both TV and radio) is not at all clear.  And while concurrent mentions might strike one as obviously intrusive and distracting on television, the Commission notes the "apparently common existing practice of superimposing unrelated promotional material at the bottom of the screen during a running program", and suggests that that practice undercuts any claim that concurrent announcements would infringe on the program’s artistic integrity.

The Commission has demonstrated an overheated interest in "sponsorship identification" for the last several years – recall the multiple VNR inquiries, as the most obvious example.  The NOI/NPRM is in line with that interest, but it extends it in a way which could have a serious adverse impact on broadcast operations.  Having to determine which products happen to be identifiable by commercial design, and then having to announce each of those products concurrently with their on-air appearance, would likely create a substantial impediment to the development and broadcast of programming.  Imagine, for example, what a TV screen would look like during an NFL or MLB game, when every piece of logo-identifiable athletic gear (helmets, shoes, bats, balls, gloves, shirts, etc., etc.) and every off-field amenity (Gatorade, Motorola, etc.) would presumably be subject to the sponsorship ID requirement.  And let’s not even start to talk about a NASCAR race.

One might also legitimately ask what purpose would be served by such a requirement?  While the NOI/NPRM invokes the "public’s right to know who is paying", the NOI/NPRM does not dwell on the questions of whether the public is perhaps smart enough to realize that the Coke cups in front of Paula, Simon and Randy aren’t there by accident, or that there is a reason that Nike has chosen to put its logo where it does.  At bottom, the Commission appears to assume that there is in fact some overriding public interest in requiring sponsorship identification – but the Commission fails to explore exactly what that public interest might be. Increased regulation of embedded advertising will inevitably draw the Commission even more deeply into content regulation than it has previously ventured – and, as a result, the Commission will be drawn even closer to obvious First Amendment issues that should not, cannot, be resolved by broad platitudinous references to "the public’s right to know".

Ideally, the Commission will in the end seek to avoid the treacherous constitutional waters toward which it has set sail.  But if it does not, the substantial burdens on broadcasters which would likely flow from increased sponsorship ID requirements, combined with the substantial content-regulation that would necessarily accompany such requirements, will ultimately require far greater justification than the Commission has thus far demonstrated.

The comment and reply comment deadlines for the NOI/NPRM have not yet been established.  Check back to our blog for updated information which will be posted when available.