ANA Urges FCC to Reject Onerous New Rules for Product Placement

ANA and other industry groups have urged the Federal Communications Commission (FCC) to reject proposals for onerous new time restrictions or disclosure rules on product placement in television programming.  We believe that the current disclosure rules of the FCC are fully adequate to inform the public about various forms of sponsorship practices.

Earlier this year, the FCC published a Notice of Inquiry and Notice of Proposed Rulemaking (NOI/NPRM) on product placement.  The Commission sought comment on a proposed rule change that would require disclosures to have lettering of a specific size and to air for a particular amount of time during a program.  In September, ANA and a large, diverse group of media and marketing companies and associations filed comments urging the Commission to reject any new disclosure rules as unnecessary and overly restrictive.

The FCC received comments from a broad range of groups and individuals.  Three groups that are strongly critical of product placement filed comments urging the Commission to go even further than the NOI/NPRM:

  • The Campaign for a Commercial-Free Childhood advocated treating product placement as the equivalent of broadcast indecency and would prohibit all product placement before 10PM to reduce the risk that children might see them;
  • Commercial Alert endorsed the "indecency" time-channeling approach and called for contemporaneous disclosures;
  • The Marin Institute proposed similar time restrictions to protect minors because of the possibility of product placements involving alcohol beverages.

ANA and other industry groups felt it was critical to respond to these proposals, so we filed reply comments last Friday.  Both sets of comments were drafted by Robert Corn-Revere, a media/First Amendment expert and partner at the law firm of Davis Wright Tremaine, LLP.  ANA was a leader in building the coalition of groups that came together to protect product placement on television programming.

The extreme proposals from these three groups would regulate product placement as if the television audience is made up entirely of children.  Our comments argue that the FCC has no statutory authority to impose time-restrictions on product placement.  Also, we noted that any effort by the Commission to regulate TV programming content by imposing time-channeling rules would raise very serious First Amendment concerns.

There has been no showing of how the public is "harmed" in any way by product placement.  The FCC's proposal appears to be a solution in search of a problem.  We believe these proposals are clearly unnecessary and because they are overly restrictive, would violate the First Amendment.  We urged the FCC to terminate this proceeding and simply clarify how existing FCC rules and policies apply to product placement.