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Abstract

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

Researchers frequently publish studies inspired by laws or regulations, and often, the authors hope to be affecting public policy. In doing so, they draw upon and address aspects of law. Most of these scholars, however, have no special training in law, and all too often, the consequence is a manuscript that is replete with misstatements of law or faulty suppositions.

Public policy research holds the potential of being critically important, not just to business but to society. If done well, there is the hope that policy makers will draw upon that research to fashion more informed and effective regulations. When related to marketing, it might help to prevent fraud, childhood obesity, misuse of prescription drugs, or any number of other social ills. The key, however, is that it must be done well. Poor research can be worthless or even dangerous. We can only hope that poor research will be ignored by regulators; otherwise, it might mislead them into adopting policies that exacerbate rather than help solve society’s problems.

Unfortunately, too much of what purports to be policy research falls into that “poor” category, and much of that is simply the result of researchers not fully grasping the legal context of the policy they are addressing. Useful policy research requires understanding of not only the behavioral concepts but also the legal ones. No one is an expert in every subject, and few marketing researchers are trained in the law.

To obtain a doctorate, we expect aspiring researchers to master various disciplines. They must demonstrate expertise in their core field, knowing the theories extant in, for example, marketing or communication. At the same time, they must develop a substantial grasp of one or more methodologies, which may be surveys or experiments, or might entail ethnography or even historical research. To be attractive for the top jobs, of course, it is better if they are well versed in multiple methods. Their analytical skills may require mastery of various statistical techniques too. In fact, to be published in certain journals, they seem to be expected to know specific empirical tests. And, of course, for their research to be publishable in any journal, they must possess an ability to write at a level well above that of the average citizen. We do not grant a doctorate to someone who is expert in just one area; they must conquer a smorgasbord of disciplines. Then, to further confound these expectations, we encourage them to do multidisciplinary research.

My own specialty, advertising, is exemplary of the problem. Advertising, in and of itself, is inherently cross-disciplinary. Its construction draws upon language for copy, art for design, and technology for some of its manifestations. It relies on psychology, sociology, and even anthropology in its strategic development, as well as for interpreting its effects. It is a confluence of business, economics, art, and to some extent, probably every conceivable discipline. All this means that, while on its face advertising is a simple thing, someone trying to grasp its complexities must have a touch of a “renaissance man” (or woman) quality. Researchers trying to master advertising, along with research methods and analytical techniques, already have their hands full. And because advertising is the most heavily regulated communication content, and perceived as potentially the most socially detrimental, there is great demand for advertising policy research. It really is no surprise that so many of these policy studies have deficiencies.

I certainly have no desire to discourage such research because the good work can be so valuable. Perhaps by identifying some of the most common problems, from my own experience, those attempting to delve into policy topics can at least be sensitized to the potential pitfalls. I will use deceptive advertising as one example to illustrate the problems, but I have seen these same issues appear in manuscripts and articles on just about every aspect of marketing policy. These errors can be roughly categorized as errors of (1) construct, (2) precision, (3) implications, (4) evidence, and (5) procedure.

Construct

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

Problems of construct arise when the researcher tries to talk about a legal concept without an adequate understanding of how that concept is handled by lawyers. In some cases, the handicap is as simple as a definition (e.g., as discussed in Rotfeld and Stafford 2007).

Deception actually is a perfect example of this. Some researchers have simply pulled a definition of that term from a dictionary. But people who write dictionaries trade in popular use of words, not technical or legal use. For this reason, researchers often believe that deception requires the advertiser intend to deceive, while regulators at the Federal Trade Commission (FTC) consider an advertiser’s intent almost entirely irrelevant. The legal definition is derived from what courts have required as proof, and intent is not required. The reason for this is that the FTC seeks to protect the public, not punish the speaker, and the public can be hurt as much from an unintended misstatement as from an intended one (Richards 1990, 20–21).

If researchers misunderstand the definition, that can undermine the value of their work. Suppose the researcher believes intent is a part of deception and then proceeds to survey advertisers about their intent, those results might have some value but probably not in the context of public policy. Their construct is faulty.

In short, never assume the behavioral definition is the same as the legal definition. Another way to put this is that a study can have both internal validity and external validity, yet still have no legal validity (also see Rotfeld 1991).

At the same time, other researchers have a slightly different problem. For them, the general concept they study may be sound, but the terminology they choose is wrong or lacks adequate precision, implying something to the reader that is inaccurate.

Precision

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

Lawyers are experts in the use of words. A difference between using the word “or” rather than “and” can dictate the outcome of a case. As such, closely related concepts treated essentially as synonyms in colloquial language are not always interchangeable in law. The terms “fraud” and “misrepresentation” easily can be misused when discussing the legal concept of deception since those terms can connote completely different bodies of law. The FTC, for instance, has no authority over the law of misrepresentation. And while the FTC regulates deceptive claims in advertising, it generally is not concerned about false claims.

Precision is important both to insure that the researcher is not missing an important distinction, but also so that the reader is not drawing the wrong conclusions. Often, a simple remark in an article can lead readers astray.

Implications

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

Preston (1982) made a point about researchers misusing the word “deception.” That word carries with it a connotation that people already have been duped. A researcher who states that the FTC regulates deception in advertising is not incorrect, but the context of that statement may imply that people must already have been fooled for regulation to occur. That implication would be wrong because the FTC can regulate advertising with the mere probability of deceiving people. Preston’s point is that the legal standard is not deception but deceptiveness. The problem is not really with the speaker, unless the speaker is making the construct error mentioned above, it is with the inferences made by the audience. Even if the researchers know the legal standard, there is a danger that a nonlawyer reader may take away the wrong meaning. Since relatively few readers of publications like the Journal of Consumer Affairs have a legal background, this risk is relatively high. Care must be taken to avoid misleading readers.

Another example that I have seen more than once involves the word “material.” Not all deceptive advertisements are regulable by the FTC; they also must be material. In simple terms, this means trivial deceptions are not worth the FTC’s time. Authors frequently explain that materiality means the deceptive claim must be likely to “influence the purchase decision.” It turns out that is a major part of the definition but not the whole thing. A deceptive claim can be material even if it does not influence your purchase decision if, for example, it causes you to shop in places you would not have otherwise shopped. In other words, if it affects the purchase process, it is material, even if it does not change your ultimate decision. As you can see, this is a little more complicated to explain, which probably is why some researchers opt for the shorthand “influence the purchase decision” approach. But, again, too often readers take these shorthand definitions as gospel, citing this source as their authority. I have seen situations where article after article misstates the law, and all of them can be traced back to one imprecise remark in a single-source article. The implications of an imprecise statement can be long lasting.

Then, there are other times when authors make a clear and precise statement, often emphatically so. In those situations, it is common to point to a statute or court decision as supporting evidence. A problem arises, though, where the supposed evidence is founded on a misreading of the law.

Evidence

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

On occasion, the root problem is reliance on a secondary, rather than a primary, source. Instead of reading the actual statute or court opinion, researchers too often rely on the interpretations of others. This, of course, is a mere extension of the “implications” issue. Since a secondary source inevitably paraphrases or translates the primary, interpretation errors are common and sometimes even compounding.

When doing policy research, though, it is essential to realize that law is in a perpetual state of flux. An error I see rather frequently is citing a source that is outdated. Even a court decision published this year, for instance, might already be superseded. Lawyers use a special index called Shepard’s Citations Service for that very reason to see if any subsequent court decisions have cited that source and perhaps modified or overturned it. Obviously, research built around a defunct law is almost certainly of little or no value. And even if the research is not dependent on that law, an outdated source can cast doubt on the validity of all aspects of the research.

It also is important to understand that laws can and do frequently conflict, which is a major reason why they can be modified or overturned. Researchers occasionally build a case to support the argument that a law should be adopted to regulate something like alcohol or tobacco advertising. The inherent difficulty with this is that many of the proposals are clearly in conflict with the First Amendment to the U.S. Constitution. Just because there should be a law does not mean there can be a law. But the First Amendment is not the only potential conflict. For example, a television commercial for breakfast cereal is subject to potential regulation by the FTC, the Federal Communications Commission, and the Food and Drug Administration simultaneously. In other words, one law could require a certain disclosure in advertising while another prohibits it. Laws do not operate in isolation. Just because a practice appears to be legal under one law does not ensure it is legal under every law.

Conflicts can occur even within a single law. A statement in one part of a statute, for example, may be qualified elsewhere in that same statute. And those two statements may be separated by pages and pages of material, so that it is easy to miss the qualifier. Back to the example of deceptive advertising, there is a provision in section 55 of the FTC Act that defines “false advertising.” It is not uncommon for people to believe this definition is what the FTC uses in its approach to misleading advertising, generally, but in truth it is qualified by a phrase in a subpart of section 52 of the Act stating it applies only to a certain narrow category of advertising. Anyone failing to read more than section 55 will be misled and easily could mislead others.

Finally, there are errors that result from an unfamiliarity with the legal system and its procedures. The process can greatly affect how a law applies.

Procedure

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

I frequently review manuscripts that cite case after case, presenting an argument about the current state of the law. But not all cases are created equal, and sometimes the authors seem to miss that rather important fact. The value of a court’s decision, aside from the impact on those directly involved in the case, is its precedential impact. And that is precisely the point these authors are trying to make, that there is precedent supporting their argument. Too often, though, they seem not to appreciate the fact that lower courts have far less value as precedent than higher courts. So the fact that a district court in Oklahoma says a certain form of advertising claim is illegal means virtually nothing to an appeals court in Massachusetts.

This also raises the issue of courts in different states or with other differences in jurisdiction. With the exception of the U.S. Supreme Court, federal courts rarely have influence over state courts. Neither does one state have a say in the law of other states. On the other hand, federal statutes often (but not always) trump state statutes. These jurisdictional priorities and boundaries are critical in determining the reach of a law.

And then, there is the complication of how administrative agencies like the FTC, as well as the Federal Communications Commission, Food and Drug Administration, and others, operate. These agencies are hybrid organizations, by design, which can make them especially confusing. One example that comes to mind is the FTC’s practice of publishing both industry guides and trade regulation rules. More than once I have seen authors cite an FTC guide as if it were law, but while rules are law, guides are not.

Conclusions

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References

I make liberal use of deception and the FTC to illustrate my points, but by no means do I intend to suggest these issues are limited to just this one area of law. Rather, the point is that law is very different from behavioral science and missteps are a hazard of doing policy research. Researchers and lawyers speak different languages and have different purposes, and to affect the law, researchers need a fair grasp of that law (Rotfeld and Stafford 2007).

Also, I do not mean to discourage research in public policy but rather to encourage specialization. The problems described here are most acute when researchers do one-off studies, that is, where they normally work in another area but decide to write a single paper dealing with a legal issue. The land mines are too many for most scholars to navigate in such a situation; it requires some degree of expertise in handling legal matters. This does not translate into a need for a law degree but rather a general familiarity and understanding of legal terminology and thinking.

My own friend and mentor, Ivan Preston, is the exemplar of a nonlawyer who became a skilled researcher in advertising law. It can be done. As Preston (1976) himself noted, “When he is adequately familiar with the lawyer’s method as well as his own . . . the researcher can proceed toward a true interaction of behavioral science with law, with innovative results.” The solution, then, is not for a researcher to abandon policy studies but rather to dedicate far more time and effort to develop the knowledge and experience necessary to sufficiently master this specialty.

And while my emphasis here has been on researchers who make legal errors, it works both ways. Federal agencies tend to be run by lawyers, who are equally unfamiliar with behavioral science, marketing, and communication. Good research in this area continues to be needed; otherwise, lawyers and legislators will determine what should and should not be included in consumer protection policies.

References

  1. Top of page
  2. Abstract
  3. Construct
  4. Precision
  5. Implications
  6. Evidence
  7. Procedure
  8. Conclusions
  9. References
  • Preston, Ivan L. 1976. A Comment on “Defining Misleading Advertising” and “Deception in Advertising.” Journal of Marketing, 40 (3): 5457.
  • Preston, Ivan L. 1982. The Difference between Deceptiveness and Deception, and Why It Should Matter to Lawyers, Researchers, and Advertisers. Proceedings of the American Academy of Advertising. pp. 8184.
  • Richards, Jef I. 1990. Deceptive Advertising: Behavioral Study of a Legal Concept. Hillsdale, NJ: Lawrence Erlbaum.
  • Rotfeld, Herbert Jack. 1991. Effects and Effectiveness of Corrective Advertising: Assumptions and Errors in Regulation Research. In Communication Yearbook/15, edited by Stanley A.Deetz (299311). Beverly Hills, CA: Sage Publications.
  • Rotfeld, Herbert Jack and Marla Royne Stafford. 2007. Toward a Pragmatic Understanding of the Advertising and Public Policy Literature. Journal of Current Issues & Research in Advertising, 29 (Spring): 6780.