Neuromarketing is an emerging field claiming to provide advertisers with better ways to understand what triggers buy buttons in consumers’ brains. While the prospect of improved advertising has generated excitement in the business community at large [1, 2], critical ethical issues have also been raised by consumer groups, scientists, and scholars [3, 4]. These concerns, however, have been largely ignored by the industry.
The State of Advertising Ethics
Deplorably, both the marketing and the advertising industries have a poor reputation when it comes to applying ethical standards. A 2011 survey conducted by Gallup  ranked the advertising profession at the bottom of the honesty scale with only 11% of participants rating advertising practitioners with very high or high scores, barely above salespeople and lobbyists.
Table 1: Honesty/Ethics in Profession
Formed in 1914, the Federal Trade Commission (FTC) is responsible for keeping consumers safe from advertisers who are unscrupulous or unethical. According to the Deception Policy Statement of the FTC, advertising must always be: 1) non-deceptive 2) supported by evidence to back up expressed or implied claims, and 3) fair. An example of a deceptive ad is presented in the clip below where the featured sand paper was in fact a fake.
Despite the legal framework in which both advertisers and advertising agencies are regulated, it appears that the advertising industry has been able to operate without much regard for what constitutes ethical advertising, primarily because of the rather subjective nature of the what defines deception or fairness . Over the last fifty years, a complex set of laws combined with a general industry belief that ethics don’t matter in advertising have fostered the idea that the practice of advertising should evolve without strong government intervention.. Furthermore, when the government does intervene, it faces fierce legal resistance from lobbying groups invoking the constitutional right of free speech. Commercial speech is indeed protected under the First Amendment as long as it does not distort or falsify advertising claims . In this context, the practice of deceptive advertising has flourished.
The Practice of Deceptive Advertising
We all recognize that advertisers develop creative ways to influence us to buy products and services we may not always want or need. However, there is a fine line between being influenced and being manipulated, which the current legal environment does not appear to address effectively. Yet, the practice of producing deceptive messaging seems to have especially flourished over the last ten years, especially subliminal and mind controlling messages.
The word “subliminal” conveys the notion that a stimulus is having an effect below our level of conscious awareness. . In 1957, James Vicary claimed that he had successfully used subliminal messages to increase sales of Coca Cola and popcorn in a movie theater . However, his research was never replicated and Vicary eventually admitted he had invented the story for promotional purposes. Since the 60s, most of the literature on subliminal advertising has been fueled by conspiracy theorists such as August Bullock .
Figure 2: The Secret Sales Pitch
But even though 85% of people believe advertisers use subliminal messaging to persuade , academics in general disagree. A research paper published in 2004 by Sheri Broyles insists that a review of 50 years of studies on subliminal advertising shows the effects are negligible . Yet, there is research evidence confirming that subliminal effect does exist. For instance, Karremans, Stroebe, and Claus demonstrated that it is possible to positively affect participants’ choice of drink options after using subliminal priming techniques . The prime was delivered via a computer display showing a brand of tea for 23 milliseconds, a time period known to be too short for conscious processing. Cooper and Cooper  were also able to manipulate behavior by showing cans of Coca Cola and the word “thirsty”.
While there are basically no laws regulating the production of subliminal advertising today, there are regulatory policies that specifically forbid subliminal broadcasting on public airwaves. The Federal Communication Commission (FCC) is the guardian of the directive banning content that is designed to “be perceived on a subconscious level only” . While networks claim to comply however, several videos posted on social media show that violations have occurred. You may be amazed at what you see on the following video.
Figure 3: Food Network featuring subliminal advertising
More importantly though, most scholars agree that the FCC has little if any influence to enforce the directive over the Internet, by far the single most powerful platform available today to disseminate subliminal
Mind Controlling Messages
A mind controlling message attempts to hijack consumers’ ability to think, effectively blocking their free will. According to Kathleen Taylor, advertising can involve a deliberate intent to control the mind or “brainwash” consumers  because it aims “to override the victim’s capacity to rationalize about his or her situation and beliefs” (p. 50). For instance, the use of excessive emotions is an effective way to trigger buying responses below the level of consciousness. Likewise, repetition of a simple message creates patterns of activity in the brain that wire for particular cravings or urges. Taylor calls these patterns “cogwebs”. Derren Brown, a popular British illusionist has produced multiple video clips featuring how mind control techniques work on people. In the clip below, he unveils how it is possible to subconsciously influence how two advertising executives come up with creative ideas for a campaign. Click here to access the clip.
Figure 4: Mind Control
Now that I have established that the practice of producing deceptive advertising messages exists, is poorly
regulated, and that both subliminal and mind controlling messages have proven effects, it is easy to understand why debating ethics and neuromarketing is an important and often controversial issue. After all, the rapid growth of new interactive media platforms provides advertisers endless opportunities to experiment with “engaging” messages, many of which trigger strong and frequent emotional responses at pre-conscious or even sub-conscious levels.
In order to understand the ethical issues surrounding the use of neuroscientific methods in advertising researcher, it is important to clarify how these methods actually work. While a growing range of tools claim to measure brain responses without cognitive or affective participation from participants, only a few are recognized to deliver credible and dependable measurements of neuronal activity: EEG and fMRI.
EEG is a rather old technology in neurology but is considered a good way to measure neuronal activity while people respond to advertising stimuli. . When active, neurons produce a tiny electrical current that can be amplified and recorded.
Figure 5: EEG helmet
The first use of EEG for the study of advertising effectiveness can be traced back to 1971 . More recent studies have confirmed that the cortical activity of subjects who remember commercials is significantly different than those who don’t, especially in frontal and parietal areas of the brain  and that the cortical activity of swing voters is sharply different that the activity of supporters . Even though EEG has high temporal resolution by recording neural activity in milliseconds, it offers low spatial resolution because it cannot precisely locate where the neurons are firing in the brain. This limitation is especially severe in deeper, older structures such as the limbic system or the brain stem that mediate many of the emotional and instinctual aspects of our behavior.
Unlike EEG, fMRI is based on scanning the change of blood flow in the brain. When neurons fire,
energy is delivered to them by the blood flow and quickly metabolized. The spatial resolution of fMRI is 10
times better than EEG while the temporal resolution of the technology is considerably inferior. Nevertheless, fMRI has the major advantage of being able to image deep brain structures, especially those involved in mediating emotional responses. All these factors combined explain why fMRI has become the most respected brain imaging technique among academic researchers who investigate advertising effectiveness.
Figure 6: fMRI scanner
Many fMRI studies have shown that advertising messages can affect brain activity and that correlations exist between specific brain areas and key variables such as arousal, emotional valence, and memorization. For instance, several critical brain areas have been found to be more active in the presence of ads that produce positive emotional valence . Also, Klucharev, Smidts, & Fernandez  measured that celebrities enhance the memory encoding for objects they are paired with in ads. Another important fMRI study showed that activity in the pre-frontal cortex can increase relative to baseline when participants read persuasive messages attributed to experts .
Based on the current state of research produced using neuromarketing techniques, it is difficult to predict whether or not the field will continue to blossom. Undeniably though, the commercialization of neurotechnology represents a serious public issue that raises many ethical questions . Yet, only a handful of journal articles discussing ethics and neuromarketing have been published in the last five years. I believe that there are effectively three key ethical questions which must be addressed.
Is the Protection of Human Subjects Adequate?
The current ethical context in which organizations can conduct research using human subjects is well defined for academics, medical practitioners, and/or researchers using federal funding and is protected under what is referred to as the “common rule” . Curiously though, none of these standards apply to the advertising research industry  and, of course, by extension to neuromarketing companies.
For decades, self-regulation has been assumed to guarantee the protection of research participants in marketing studies. Additionally, medical devices are regulated by the FDA dictating rules and regulations that users of fMRI and EEG are supposed to follow. While this may provide adequate guarantees that such devices are not used carelessly, it does not insure that specific research designs will not inflict psychological or physiological harm during an experiment. Thus, the protection of neuromarketing participants from ethical misconduct appears poorly addressed by both the government and the neuromarketing research industry. A review of websites of the top neuromarketing research companies also confirms that they provide little if any information on the protocols and ethical guidelines they follow during their studies .
Is Privacy of Thoughts Violated?
A number of scholars have expressed major concerns over the possibility that the privacy of thoughts may be violated by neuromarketing practitioners [3, 26]. In the last decades, marketing researchers have
dramatically improved their ability to collect consumer data from loyalty cards, credit cards, or online
browsing records . But nothing compares to the ability to probe directly the consumer’s mind. Indeed, being able to observe subconscious cognitive and affective processes represents a huge leap in cracking the code of possible “buy buttons” in the brain . But many believe that inner thoughts are sacred and are constitutionally protected . For instance, Eaton and Illes  warn that some private information such as personality traits, emotions, memories, sexual preferences, and even lies may be revealed by a brain scan. While the concerns about privacy violation appear legitimate, published studies show that scientists have a very limited ability to decode our private thoughts. According to Fisher for instance, “the current state of imaging technology does not allow for accurate, deterministic predictions of human decision making” . Additionally, as long as participants provide consent and researchers guarantee confidentiality, no laws are effectively broken. Nevertheless, the current ethical context in which neuromarketing companies are allowed to operate does not seem to address the issue adequately.
Can Neuromarketing Findings Harm the Public?
There are two types of neuromarketing findings that may harm participants and possibly the public at large: incidental findings and manipulative insights.
Incidental findings occur when brain abnormalities are identified as a result of performing a brain scan during a research protocol, such as the presence of a tumor. The frequency and seriousness of such findings have been extensively doc**ented while using fMRI. For instance, Nelson estimates that more than 5% of brain scans produce incidental findings . Most neuromarketing companies are typically ill-equipped to address incidental findings because they are not required to adopt a particular protocol for handling incidental findings and they typically dont use a board-certified neuroradiologist.
Manipulative insights may be used to increase the volume of deceptive messages toward the general public. Since the bulk of neuromarketing research is private, little is known about the quantity of deceptive messages that are designed using manipulative insights. Reports from neuromarketing studies which are published or shared with the public on various blogs [30, 31] would suggest that neuromarketing research is used primarily to weed out the worst ads from the best rather than to build elaborate blueprints of the perfect persuasive message. There is only one scholarly paper  addressing the degree to which neuromarketing may harm consumers and it strongly suggests that there is no evidence advertisers are gaining more power to manipulate consumers by conducting neuromarketing studies. Not all scholars agree though. Wilson, Gaines & Hill believe that the near future will see more commercial integration of neuromarketing findings to manipulate . They imagine a not distant future in which consumers’ brains will be scanned on the spot so that advertisers can deliver instant customized messages; a world in which free will is completely controlled by big brands, such as the world described in the popular movie “Minority Report”.
Figure 7: Minority Report
The ethical context in which advertising agencies operate in the United States is both weak and fragile. Additionally, the growth of new digital platforms has provided advertisers with more options to test and deploy more deceptive messages, especially to promote products that are heavily regulated such as alcohol and tobacco. A largely self-regulated environment makes it potentially easier for advertisers using neuromarketing insights to increase their ability to manipulate consumers. However, there is still limited evidence that advertising agencies have gained more manipulative power using neuromarketing findings. First, the complexity of the tools used to investigate brain responses in front of advertising is poorly understood by agencies. Second, there is an overwhelming consensus among the scientific community that interpreting the data generated by neuroimaging remains in its infancy. Clearly, the commercial leverage gained by advertisers using neuromarketing is, if any, highly speculative.
However, it remains conceivable that neuromarketing insights may be used to increase the volume of deceptive messages in the near future. That’s why it is timely and critical that scholars and researchers continue to debate ethical and legal issues that are presented in this blog post. It will foster a productive dialogue on what neuromarketing can actually do to enhance the science of consumer behavior while influencing future policies protecting vulnerable groups from highly manipulative strategies.
This paper was originally presented to Fielding Graduate University as a requirement for a course on Ethics offered by the Doctoral program in Media Psychology.
September 11, 2011
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