While we love our male colleagues, I am delighted that the women partners and associates in our adlaw group easily outnumber them.  It seemed appropriate to close out Women’s History Month by taking a look at issues involving women in advertising (for the FTC’s take on Women’s History Month click here).

Gender equality was clearly absent from early advertising.  One ad from 1912 encouraged men to light a cigarette in front of a suffragette and watch her say “I wish I were a man.”

click here to view image.

Another, later ad from 1952 showed a husband spanking his wife because she was not buying fresher coffee.

Click here to view image.

Such ads never prodded the FTC into action, however, in the activist 1970s, one Bureau Director suggested that Geritol’s “My wife, I think I’ll keep her” ad might be making an unsubstantiated claim that use of the product would create “marital bliss.”

Ads like these would spark an outcry today, but there are still issues surrounding the portrayal of women in advertising including the use of oversexualized or degrading imagery, the use of excessively thin models, and photoshopping.

With respect to overly thin models, some have suggested that the FTC could use its unfairness authority.  The FTC has used unfairness in the past as a basis for attacking advertising that it believes promotes unsafe behavior such as kids cooking without adult supervision or drinking beer and sailing.  Does using unhealthily thin models in advertising lead to other women trying to emulate that look and endangering their own health, giving the FTC grounds to bring an unfairness case?

Law enforcement action against advertising that degrades women or oversexualizes them is more problematic because of protections afforded even to commercial speech by the First Amendment (although a compelling case that such imagery is harmful would, of course, potentially override any such protection).  However, in other countries laws banning such depictions are more common.  For example, in Spain an act designed to protect against gender violence prohibits using the image of women in a degrading or discriminatory manner.  Similarly, Nicaragua prohibits the media’s use of women as commercial or sexual objects.

The same is true for self-regulation outside the United States.  In Australia, for example, the Australian Association of National Advertiser’s Code of Ethics requires that advertisers not use “sexual appeal in a manner which is exploitative and degrading of any individual or group of people.”  The United Kingdom’s Advertising Standards Authority’s (ASA’s) Code prohibits advertising that causes harm and offense (as defined by prevailing societal standards) and published a report in 2012 with some public research findings in that regard.

In the U.S., self-regulatory bodies are, for better or worse, not beholden to the First Amendment, but their willingness to address issues such as the degradation of women is mixed.  While NAD has addressed issues such as photoshopping (click here) it has done so when the practice led to deception rather than on the basis of encouraging unhealthy attitudes toward one’s appearance.  On the broader societal issues, NAD’s rules state that “Complaints regarding . . . questions of taste and morality . . . are not within NAD/CARU’s mandate.”  The Distilled Spirits self-regulatory guidelines, however, do regulate advertising “good taste.”  Distilled Spirits advertisers are not permitted to “. . . degrade the image, form or status of women . . .” or use lewd or indecent images, and should not use sexual prowess or sexual success as a selling point for a brand.

Of course, the first line of defense against any such practice is self-policing and self-awareness by marketers, and most do an excellent job in this regard.  Nevertheless, how women are portrayed in advertising will likely continue to be part of our national conversation.