Brandishing the First Amendment: Commercial Expression in America

5. Brands, Information, and Consumer “Education"

chapter 5 Brands, Information, and Consumer “Education” [A]s any brand specialist knows, perception trumps reality every time. —Claudia H. Deutsch, New York Times, November 7, 2007 We live in a world of brands. The brand has morphed from being a means to identify a speci‹c source for goods to one of the dominant metaphors of the age.1 We are encouraged to think of everything in terms of a brand— churches2 and institutions of higher learning,3 political4 and music groups,5 even self: “To be in business today, our most important job is to be head marketer for the brand called You.”6 Even rebellion and anticonsumerism movements seem to be inexorably colonized into the rhetoric of branding.7 Some argue that the prominence of branding in the present economy is a function of the move from the emphasis on producing things to an emphasis on consuming things.8 Whatever the reason for its prominence, the brand is a major factor in commercial expression. If we agree with Emerson that one of the values the First Amendment is meant to protect is the production and exchange of truthful information , then very little marketing seems to qualify for protection, since little of it is informative. Indeed, much of it could be said to be misinformation. Prominent psychologist Elizabeth Loftus has described advertising as “inherently misleading.”9 It is only in the parallel universe of marketing that advertising is “information.” This is because of brands. When we examine one of the central organizing concepts of much commercial speech—the brand—it becomes clear that what claims for protection for commercial 88 speech really involve is protection of property interests and the freedom to manipulate. Ordinarily, when we say someone is “educated,” we mean they have acquired useful or true information. Similarly, the word learning tends to refer to a process that is considered unequivocally good—again, oriented toward the acquisition of useful or true information. But what a marketer wants consumers to “learn” about a product is something more like indoctrination, and the material to be learned may be the view the marketer would like the consumer to have of the product or the feelings the marketer would like to conjure up, not any information about the concrete attributes or properties of the product. In a world dominated by brands, consumer education generally means developing a brand meaning, which, in turn, is “[n]othing we can measure or explain precisely. It’s a ‹ctional property, often illusory and evocative—the emperor’s ‹nest duds.”10 Branding communications can create economic value. That means they create “information” of a sort. It just is not clear whether the resources devoted to creating brand meaning might not be put to more productive use.11 What Is a Brand? The brand is part of a product’s “core meaning.”12 Branding is “the process of attaching an idea to a product.”13 Sometimes a brand is a product (although that may be increasingly rare these days, since con‹ning the expression of a brand identity to one product rather than a line of products would seem to be a missed opportunity). More typically, a brand is a label associated with an identi‹able line of products, often in the same general category of things (e.g., food), but not necessarily. For example, Starbucks is a brand primarily associated with coffee for sale in its retail stores, but it also sells tea, food, coffee-related appliances, and dishes. Its prepackaged coffee beans are available for sale in many grocery stores. In addition, Starbucks owns Hear Music, a venture producing CDs for sale in its stores; Ethos Water, a line of bottled water; and (most curiously of all, since it appears to be a competitor) Seattle’s Best Coffee.14 Sometimes there are multiple layers of brand identity, as where a parent company holds many distinct brands or brand families for a particular type of product. Kraft Foods is an example of this kind of company. Kraft Foods Brands, Information, and Consumer “Education” / 89 owns Philadelphia brand, Oscar Mayer, Maxwell House, Nabisco, Oreo, and others.15 Kraft itself is what might be called a master brand. It has its own identity that is related to but distinct from any particular product, for example , Kraft Macaroni & Cheese. At other times, a parent or holding company is relatively unknown, or at least its separate corporate...