Subliminal marketing involves the idea that an advertiser can display words or images during a commercial or broadcast so briefly that the viewer doesn't consciously notice them, but will still subconsciously be affected by them. The term "subliminal advertising" was invented in 1957, when James Vicary, a researcher, claimed he could use the ads to get people to consume popcorn and Coke during a movie. He later admitted that he made up those claims, but the idea still lives on, even affecting the stances of modern regulatory agencies.

Laws The United States does not have a specific federal or state law addressing the use of subliminal messages in advertising. Instead, it is the country's advertising and broadcasting regulatory agencies that deal with the topic and its impact on the public. In contrast, other countries do have specific laws in place concerning subliminal marketing. Britain and Australia, for example, ban subliminal advertising for any reason.

Court Rulings Subliminal advertising, because it is intended to produce information that the viewer is not aware he is receiving, has been ruled as not protected by the First Amendment. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York in 1979, the Supreme Court ruled that in order for marketing speech to be protected by the First Amendment, it must not be misleading. Subliminal advertising, by its very nature, does not fall under this protection. In the 1989 case Vance v. Judas Priest, a Nevada judge ruled that subliminal messages aren't protected by the First Amendment and do constitute an invasion of privacy. He also ruled that subliminal messaging was not used in that particular case because, to date, no one had proven that subliminal messages could actually move someone to act against his will.

FCC Statement The Federal Communications Commission will revoke the broadcast license of any company that uses subliminal marketing in its broadcast. It came to this conclusion after many years of research. In 1955, the FCC issued a statement that subliminal marketing was a cause of public concern and that broadcasters should approach the technique cautiously. In 1974 the FCC issued Public Notice FCC 74–78, and an Information Bulletin called "Subliminal Projection," following much investigation into the topic. The FCC stated that all broadcasting licensees should not use subliminal advertising techniques because the techniques are deceptive, which runs counter to the purpose of the FCC. The statement is still on the FCC's website as its stance on subliminal marketing.

FTC The Federal Trade Commission does not have any statement or regulation specifically addressing subliminal marketing. The closest it gets are sections 5 and 12 of the Federal Trade Commission Act. These sections forbid any advertising that is deceptive or unfair. Subliminal marketing falls under the category of deceptive, according to court rulings and the FCC. For advertising to be barred based on unfairness, the act must be intentional and affect commerce, which could be harder to prove for subliminal marketing.

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