“Commercial speech” is, according to Cornell’s Legal Information Institute, speech “where the intended audience is commercial or actual or potential consumers.” Commercial speech can include advertisements, warranties, etc.—any communication by a vendor meant to facilitate a commercial transaction.
Commercial speech may frame statements as opinions or conjectures, but noncommercial speech may be misleadingly sarcastic with impunity.
Jolene swears up and down that her homemade cough syrup can cure her friend’s laryngitis. When it does not, her friend is disappointed; but Jolene faces no other consequences. Seeing that she has not lost a friend over her empty promise, she decides to market the cough syrup using that same empty promise as bait. Her false advertising puts her in violation of 13-11a-2(e), and she is fined. (So much for an easy profit.)
Other Important Information
Commercial speech is granted some protection under the First Amendment, but far less than noncommercial speech. While laws are tailored to avoid repressing noncommercial speech according to a standard of strict scrutiny, only intermediate scrutiny is necessary to protect commercial speech. Deceptive or misleading commercial speech is not protected at all, as consumers’ rights to know what they are consuming surpass the rights of businesses to market strategically to make a profit. Commercial statements should be specific, factual, and detailed to satisfy requirements of product liability. (This is why television advertisements for any kind of medication always have comically lengthy disclaimers and candy bar wrappers warn that the contents were manufactured on machinery that may have touched peanuts.) It is vital for the safety and satisfaction of a potential consumer base that they know precisely what they are getting into when they make a purchase. While an advertisement may emphasize or downplay information (or even be all but totally irrelevant to the product), it cannot make actually false statements.
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