Running Head: NEUROMARKETING AND ETHICS

Neuromarketing and Ethics

Challenges Raised by the Possibility of Influencing Buy Buttons in Consumers’ Brains

Christophe Morin

1104 Sir Francis Drake Blvd

San Anselmo, CA 94960

christophe@salesbrain.com

School of Media Psychology, 771 KA with Dr. Jean Pierre Isbouts

Fielding Graduate School

August 10, 2011

 Neuromarketing and Ethics 1

Author’s note

The topic of this paper was very personal for two reasons. First, I co-authored one of the

first mainstream books on neuromarketing nearly a decade ago. I have lectured extensively on

the subject as well as conducted and published research which is used by advertisers and

marketers to improve advertising and sales effectiveness. Second, I am planning to do my

dissertation on the effect of subliminal messages on the brain. I hope that my work will help

explain and predict why some subliminal messages work and others don’t. I am especially

interested in the deceptive impact subliminal messages may have on vulnerable audiences like

adolescents. Working on this KA has truly helped me identify the context in which I can frame

the relevance and importance of my doctoral work.

Introduction

Neuromarketing is an emerging field claiming to provide advertisers with better ways to

understand what triggers buy buttons in consumers’ brains. By adopting methods used by

neuroscientists to investigate the neural signature of many consumption behaviors,

neuromarketers are promising unparalleled levels of success in explaining and predicting the

success of TV commercials, movies, print ads, packaging, billboards, and more. Given the

historical difficulties the advertising industry has had proving the return on ad spending (Micu &

Plummer, 2010), neuromarketing has received relatively fast adoption in the last five years.

While the prospect of improved advertising has generated excitement in the business community

at large (Kenning, 2007; Lee, Broderick, & Chamberlain, 2006), critical ethical issues have also

been raised by consumer groups, scientists, and scholars (Murphy, Illes, & Reiner, 2008; Senior,

Haggard, & Oates, 2011). These concerns, however, have been largely ignored by the industry.
 Neuromarketing and Ethics 2

The purpose of this paper is to discuss both ethical and legal issues related to the

proliferation of neuromarketing services in the United States. My focus will be first to review the

legal and ethical context in which advertising has evolved over the last ten years, a period during

which a growing number of digital media platforms have emerged offering the technological

ability to produce more manipulative ads. If indeed neuromarketing experts are able to probe

consumers’ minds directly, many consumer advocates believe that advertisers may gain

excessive power to limit consumers’ free will. Second, I will review the specific legal and ethical

issues raised by the practice of neuromarketing, namely the conduct of advertising research using

neuroscientific tools. In this section, I will concentrate on the use of functional magnetic

resonance imaging (fMRI) and electroencephalogram (EEG) since both technologies are the best

methods by which researchers can investigate the neural basis of advertising effectiveness.

The State of Advertising Ethics

The subject of ethical advertising is considered an old issue (Bishop, 1949). Ethical

advertising can be defined as the production and dissemination of commercial messages that

promote products or services without deceiving (Bishop, 1949). Deplorably, both the marketing

and the advertising industries have a poor reputation when it comes to applying ethical standards.

In the late 1980s, Zinkhan and his colleagues investigated the responses of over 500 MBA

students to ethical marketing dilemmas, a study which confirmed that young executives are not

likely to use moral idealism. Worse, the study showed a deterioration of this trend over a short

six-year time period, suggesting a rapid erosion of the importance of ethics in the practice of

marketing (Zinkhan, Bisessi, & Saxton, 1989). More recently, a survey conducted by Gallup

(2011) ranked the advertising profession at the bottom of the honesty scale with only 11% of
 Neuromarketing and Ethics 3

participants rating advertising practitioners with very high or high scores, positioning them just

four points above car salespeople and lobbyists.

Formed in 1914, the Federal Trade Commission (FTC) is responsible for keeping

consumers safe from advertisers who are unscrupulous or unethical. Over time, the FTC has

defined general conditions upon which a message is deemed to violate the standard of “truth-in-

advertising” (FTC, 2011). 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 additional policy statement defines unfairness as causing physical or

material prejudice to consumers. Considering that physical and material parameters vary widely

based on the nature of the products or services advertised, the government has issued specific

laws regulating advertising for credits cards, loans, pharmaceuticals, alcohol, and tobacco

products making the legal control of advertising a complex web of definitions and exceptions.

Additionally, a number of state and local organizations such as the Better Business Bureau

(BBB) are also involved in settling consumer complaints arising from unscrupulous advertisers.

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 (Drumwright & Murphy, 2009). According to Preston (1994),

advertisers have always considered that as long as they observe the law, they don’t have further

ethical or moral obligation towards the public. Preston believes that the law falls short and that as

a consequence “ethics never really starts” (p. 128). This would explain why so many advertising

practitioners appear to have both moral myopia and moral muteness, warn Drumwright and

Murphy (2004). Both authors have long advocated stronger policy to regulate the advertising
 Neuromarketing and Ethics 4

industry. They designed a seminal study assessing ethical practices in the advertising industry,

which consisted of in-depth interviews with advertising executives across 29 agencies in eight

cities. The study revealed a shocking lack of moral vision among advertisers, characterized by

the inability to put moral issues into focus. What they labeled “moral myopia” in advertising

agencies is so severe that “it is unlikely that sound ethical decision making will occur” (p. 11).

Additionally, the study points to another related problem, which is that a majority of agency

executives are affected by moral muteness.

Moral muteness is a behavior characterized by not seeking or wanting to engage in any

dialogue on ethics. It is a relatively more serious issue than moral myopia because it implies that

some advertisers have awareness and even concerns over specific ethical issues, yet they have

chosen to not speak up about them. While moral muteness appears widespread in the advertising

industry, it has been identified as a common problem across many business sectors (Bird, 1996,

2002). According to Bird, moral muteness typically takes three forms: 1) not reporting observed

abuses, 2) not speaking up for ideals and 3) not holding others accountable.

Why is moral muteness persisting among advertising executives? Drumwright and

Murphy believe that four types of rationalizing behaviors explain this phenomenon:

compartmentalization, compliance, opposition, and fear. To begin with, compartmentalization is

a way of separating one’s own personal standards from the standards used by the business in

which one is working. As revealed by the study, most advertising staff members, especially those

involved in the creative development process are encouraged to “leave their own moral standards

at the door”. Next, compliance is used when advertisers deflect the responsibility to raise ethical

issues because they believe they have no business questioning whether their customers have

good intentions. Third, opposition reflects a belief that consideration of ethical standards hinders
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the quality of the creative process. Essentially, a great majority of advertisers think that creativity

cannot flourish with moral boundaries. Finally, fear characterizes the behavior of those who

worry that raising ethical issues will jeopardize the ultimate commercial success of the agency.

Gradually, 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 be free to

evolve without strong government intervention and that advertisers can simply self-regulate by

adopting best practices. Furthermore, when the government does intervene, it typically faces

fierce legal resistance from lobbying groups defending the combined interests of both advertisers

and the advertising industry. In most cases, the defense strategy used by lobbying groups has

been to consistently invoke 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

("Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council," 1976). As a result,

even heavily regulated businesses such as the tobacco industry have regularly opposed legal

moves made by the government to control or restrict the use of specific advertising messages

(ANA, 2011). Together, three organizations represent thousands of advertisers and advertising

agencies that benefit materially from limited or weak regulation: the Association of National

Advertisers (ANA), the American Association of Advertising Agencies (AAAA), and the

American Advertising Federation (AAF).

While it is clear that the current environment makes it difficult for advertisers to use

outrageous or false claims without facing a barrage of consumer complaints and costly legal

complications, there are certain types of deceptive messages that are known to be much harder to

deter and sometimes impossible to detect.

The Practice of Deceptive Advertising

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How real or widespread is the practice of deceptive advertising? We all recognize that

advertisers have developed more and more 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. While the current law does aim to protect consumers from deceptive claims, Preston,

Bird, Drumwright, Murphy and many other scholars believe that it is rarely enforced for three

reasons: the volume of advertising messages produced is enormous, the government has limited

resources to act, and the advertising industry has the means to block additional regulation. Yet,

addressing the degree to which it may be possible for advertisers to create and disseminate

messages that deceive, mislead or manipulate is a serious issue.

There are two critical aspects that make deceptive advertising possible: the use of unique

deceptive creative strategies and the availability of media platforms that can enable or leverage

the dissemination of such messages. The research literature on deceptive advertising is scant on

both aspects. Putting aside articles that address blatant attempts to manipulate the public with

outrageous claims or copious lies, the practice of producing deceptive messaging seems to have

especially flourished over the last ten years. These practices typically fall into two categories of

messages: subliminal and mind controlling.

Subliminal Messages

The word “subliminal” conveys the notion that a stimulus is having an effect

below our level of conscious awareness. The word “limen” actually means “threshold”

(Merriam-Webster, 2011). In 1957, a private market researcher named James Vicary claimed

that he had successfully used subliminal messages to increase sales of Coca Cola and popcorn in

a movie theater (Karremans, Stroebe, & Claus, 2006). However, his research was never
 Neuromarketing and Ethics 7

replicated and Vicary eventually admitted he had invented the story for promotional purposes.

Nevertheless, it sparked a public debate around the possibility that advertisers could actually

insert messages that are undetectable by the human mind and yet can directly influence buying

behaviors. Since the 60s, most of the literature on subliminal advertising has been fueled by

conspiracy theorists who insist they have found undisputable evidence of hidden buying

instructions in TV commercials, print ads, billboards, and labels (Bullock, 2004). Still today,

85% of people believe advertisers use subliminal messaging to persuade them to buy (Rogers &

Smith, 1993). However, academics in general disagree.

A research paper published in 2004 by Sheri Broyles claims that a review of 50 years of

studies on subliminal advertising shows the effects are negligible (Broyles, 2006). However,

while Broyles dismisses the possibility that the study of subliminal messages can bring scientific

value, she fails to deliver a fair and objective assessment of the topic. By focusing her paper on

refuting many of the extravagant claims made by Bullock (2004), she attempted to frame

subliminal messaging as nothing more than a conspiracy theory. In fact, she believes that the

widespread public belief in subliminal advertising is falsely implanted in consumers’ brains and

states that “consumers need not worry about psychological manipulation from subliminal

advertising” (p. 405).

While I don’t personally subscribe to the notion that advertisers actively conceal buying

instructions as coded imagery, I would argue that this is not the only form subliminal messages

can take. There are messages that achieve virtually undetectable impact and can be considered

subliminal because they do act below the threshold of consciousness. Examples would be

advertisements disguised as product placements or brands embedded in virtual worlds such as

videogames prominently featuring a brand also called “gameverts” (Fishlabs, 2011). More
 Neuromarketing and Ethics 8

importantly, there is research evidence confirming that subliminal effect does exist. For instance,

Karremans, Stroebe, and Claus demonstrated conclusively that the impact of subliminal priming

is measurable and significant (2006). They showed that it is possible to positively affect

participants’ choice of drink options after using subliminal priming techniques. Cooper and

Cooper (2002) were also able to manipulate behavior by showing cans of Coca Cola and the

word “thirsty”.

Even though the evidence supporting the results produced by subliminal techniques is

limited, it is promising and needed. So far researchers have relied on self-reports or post

experimental behavioral measurements, which are not really adequate to study subconscious

responses. It is my hope that future studies will investigate how subliminal messages directly

affect neuronal response.

To sum up, there are basically no laws regulating the production of subliminal advertising

today. On the other hand, there are regulatory policies that specifically forbid subliminal

broadcasting on public airwaves. The Federal Communication Commission (FCC) is the

guardian of the directive to make sure that no subliminal programming is used on the public. The

broadcast of subliminal material is defined as content that is designed to “be perceived on a

subconscious level only” (FCC, 2008). Presumably then, if advertisers are developing messages

that are designed to be perceived both at the conscious and subconscious levels, they are

excluded from the directive. Not surprisingly, most scholars agree that the FCC has little if any

influence to enforce this directive over the Internet, by far the single most powerful platform

available today to disseminate subliminal messages (Rapp, Hill, & Wilson, 2009).

Mind Controlling Messages

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A mind controlling message attempts to hijack consumers’ ability to think for

themselves, effectively blocking their free will. The practice draws on years of psychological

studies and was considered to be in its infancy by the time neuroscience started to considerably

influence the study of consumer behavior about a decade ago. According to Kathleen Taylor, a

research scientist in the Department of Physiology, Anatomy, and Genetics at the University of

Oxford, advertising can be a deliberate intent to control the mind or “brainwash” consumers

(Taylor, 2004). In her passionate book “Brainwashing: The Science of Thought Control”, she

reminds us that a second definition of the term “brainwashing” in the Oxford dictionary is

“persuasion by propaganda or salesmanship” (p. 51). Therefore according to Taylor, advertising

often aims “to override the victim’s capacity to rationalize about his or her situation and beliefs”

(p. 50). As a cognitive scientist, she recognizes that the use of excessive emotions by advertisers

is an effective way to trigger buying responses below the level of consciousness. Likewise,

excessive repetition of a simple message creates patterns of activity in the brain she calls

“cogwebs” that wire for particular cravings or urges. While the book explores much more

coercive forms of brainwashing practices such as those used to force people to adopt a different

religion or embrace extreme political ideals, Taylor makes a credible case that the practice of

advertising is increasingly attempting “to change minds in ways that are deceptive” (P. 52).

Deceptive Media Platforms

The media landscape has considerably changed over the last two decades as a result of

the growth of the Internet, the rate of technological innovation in computational sciences and the

appetite of advertisers for new ways to reach their audience. As a result, three specific platforms

have emerged as growth beds for the development of deceptive messaging: virtual worlds, social

media and Internet advertising. As one of the leading consumer protection organizations in the
 Neuromarketing and Ethics 10

United States, the purpose of the Center for Digital Democracy xxx(CDD, 2011) is to raise

awareness on the use of these platforms, especially when they promote products to vulnerable

groups of consumers such as children elderly population, or even the physically and mentally ill

(Hudson, Hudson, & Peloza, 2008),.

In a report published in 2010, a group of researchers from the Berkeley Media Studies

Group working with the CDD warned that the proliferation of deceptive techniques to market

alcohol to young audiences had dangerously accelerated in the last five years (Chester,

Montgomery, & Dorfman, 2010). The report identifies that virtual worlds, social media and

Internet advertising all aim to foster “engagement” with targeted groups in ways that are largely

deceptive. Alcoholic beverage and tobacco companies are famous for being at the forefront of

these tools because they capitalize on the unfiltered possibility of creating interactive platforms

that showcase their brands. The authors of the CDD report believe that when young people visit

virtual worlds and capture, even covertly, that such brands are integrated in the world they

navigate; they develop positive impressions or associations that work insidiously in favor of the

brands. If that is indeed the case, it would certainly explain why product placement has surged as

a common practice in advertising of many products that would otherwise receive more

restrictions such as tobacco products, alcohol, and even weapons. And while this issue is

considered serious in Europe, it has received hardly any attention in the United States (Hackley,

Tiwsakul, & Preuss, 2008). Not surprisingly, the CDD calls for more regulation to limit the use

of deceptive messages to vulnerable audiences delivered over digital platforms. The report also

strongly dismisses the idea that advertisers or advertising agencies have any motivation to self-

regulate, a position largely supported by the evidence I presented earlier.

Neuromarketing Ethics
 Neuromarketing and Ethics 11

The first part of this paper established that the practice of producing deceptive advertising

messages exists, is poorly regulated, and that both subliminal and mind controlling messages

have effects that have only recently been considered. Additionally, 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 this context, it is easy to understand why the

emergence of neuromarketing has been so controversial. On one hand it is largely supported by

marketers who tend to always welcome new ways to measure and improve the return on ad

spending (Lee, Senior, Butler, & Fuchs, 2009), on the other it is fiercely opposed by consumer

advocates who predict a dangerous rise in stealth marketing techniques (Murphy, et al., 2008).

The next section will address the controversy by discussing key ethical issues related to the

practice of neuromarketing as a way to investigate advertising effectiveness.

First, in order to better understand the issues surrounding the use of neuroscientific

methods by marketing researchers, it is helpful to clarify how these methods actually work and

what insights they can generate. While a growing range of tools claim to measure brain

responses without cognitive or affective participation from test subjects, only a few are

recognized to deliver credible and dependable measurements of neuronal activity: EEG and

fMRI.

EEG

EEG is a rather old technology in neurology but is considered a good way to

measure neuronal activity while people respond to advertising stimuli. While neurons represent

only 15% of all cells in the human brain, they are considered primarily responsible for the

biological basis of our cognitive, affective, and behavioral responses. We have over 100 billion
 Neuromarketing and Ethics 12

neurons and trillions of synaptic connections, which represent the basis of neural circuitry. When

active, neurons produce a tiny electrical current that can be amplified. Together, these currents

produce multiple patterns of frequencies called brainwaves that vary based on our different states

of arousal and consciousness.

The first use of EEG for the study of advertising effectiveness can be traced back to 1971

(Krugman, 1971). But Davidson (1979) was one of the first cognitive scientists to propose a

framework for linking affect and electrical patterns in the brain. More recent studies have used

EEG to record and analyze brain waves while people view TV advertisements or political

messages (Astolfi et al., 2008; Vecchiato et al., 2010)). Astolfi and his colleagues 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. Likewise, Vecchiato and his team

of researchers from the University of Rome demonstrated that the cortical activity of swing

voters is sharply different that the activity of supporters, suggesting that arousal is largely

subconscious and may reflect a sort of pre-coded level of attention which is dependent on one’s

core beliefs on a subject or a topic.

While linking waves to specific cognitive demands on the brain is a common procedure,

measuring an emotional response from ads with EEG is much more complicated. This stems

from the fact that EEG has very important limitations. 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. Additionally, it is estimated that nearly

80% of our brain activity is used to sustain a critical state called “rest time”, a state which was
 Neuromarketing and Ethics 13

traditionally believed to use little brain energy (Cabeza, 2006). This astonishing fact makes it

difficult to claim that brainwaves generated by specific tasks are entirely produced by the

stimuli.

fMRI

Unlike EEG, the fMRI modality is based on using an MRI scanner to image the

change of blood flow in the brain. When neurons fire, they need to use energy, which is

delivered by the blood flow and quickly metabolized. The key element for a researcher to

understand is the contrast of the BOLD signal measured by the fMRI during a particular task.

BOLD is an acronym for Blood Oxygen Level Dependant. During a task, specific areas of a

subject’s brain will receive more or less oxygenated blood flow than they do at rest time and

therefore the BOLD signal becomes a proxy for measuring neuronal activity triggered by the

stimuli used in the experiment. The spatial resolution of fMRI is 10 times better than EEG by

providing researchers the ability to image a voxel (Volume-Pixel), which represents the

cumulative activity of 1 mm3 of neurons. On the other hand, the temporal resolution of the

technology is considered poor. Indeed, there is a delay between each time a neuron fires and the

time it takes for the BOLD signal to change: usually a couple of seconds. 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.

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, utility and memorization. For instance, several critical brain areas have been
 Neuromarketing and Ethics 14

found to be more active in the presence of ads that produce positive emotional valence: the

medial prefrontal cortex (MPFC), the nucleus accumbens (basal ganglia), the amygdala, and the

striatum (basal ganglia) (Mobbs, Hagan, Azim, V., & Reiss, 2005). Also, Klucharev, Smidts,

& Fernandez (2008) measured brain activity using fMRI while subjects were shown images of

celebrities paired with objects, a way of simulating the effects of celebrities endorsing products.

Compared to unknown individuals, celebrities enhanced memory encoding for objects they were

paired with and were also positively associated with differential activation in the medial

temporal lobe, while differential activation in the caudate nucleus modulated changes in attitudes

toward purchasing intentions. Psychological data also showed that celebrities increased

participants’ favorable attitudes towards the products by 12%, while increasing the probability of

object recognition by 10%. Another fMRI study conducted by Falk et al on a campaign for a

sunscreen product showed that activity in the MPFC can increase relative to baseline when

participants read persuasive messages attributed to experts using the sunscreen (Falk, Berkman,

Mann, Harrison, & Lieberman, 2010). Differential activation in the MPFC predicted 23% of the

variance in sunscreen use one week after the message exposure, while self-report attitudes

toward sunscreen use failed to predict actual use. Finally, Yoon et al. (2006) successfully

demonstrated that semantic judgment about brands and people are not processed by the same

circuits while Knutson and his colleagues identified distinct neural wiring for emotional

responses preceding consumer decisions (Knutson, Rick, Wimmer, Prelec, & Loewenstein,

2007; Knutson, Wimmer, Kuhnen, & Winkielman, 2008).

Is Neuromarketing Just Hype?

While it is clear that experiments testing advertising effectiveness with

neuroscientific methods have already yielded important insights (Fugate, 2007; Kenning, 2007),
 Neuromarketing and Ethics 15

some scholars consider the hype for neuromarketing to originate from the public’s fascination for

cognitive neuroscience (Racine, Bar-Ilan, & Illes, 2005; Weisberg, Keil, Goodstein, Rawson, &

Gray, 2008). McCabe and Castel (2008) argue that the public is simply attracted by brain images

that provide a physical basis for grasping the nature of complex cognitive and affective responses

while Tovino points to the troubling similarity between the rapid adoption gained by

neuroscience and the rise of phrenology at the end of the 17th century (2007). Phrenology was a

pseudoscience introduced by Joseph Gall, an Austrian anatomist and physiologist who observed

that some of his students who had good memories also had prominent foreheads. Based on that

and his own knowledge, he developed a comprehensive theory linking physical features of the

head to psychological characteristics. His work was later commercialized by one of his students

Johann Gaspar Spurzheim and eventually became widely popular among the public. The

approach was even adopted by some employers and lawyers in the United States during the mid

1800s until it was eventually ridiculed and abandoned by the beginning of the 20th century.

Based on the current state of research produced using neuromarketing techniques, it is

difficult to predict whether or not the field will endure lasting fame and success or follow the

same fate as phrenology. Undeniably though, the commercialization of neurotechnology at large

represents a serious public issue that raises many ethical questions (Eaton & Illes, 2007). Yet,

only a handful of journal articles discussing ethics and neuromarketing have been published in

the last five years. There are effectively three key ethical questions typically addressed: 1) is the

protection of human subjects adequate during a neuromarketing study? 2) is privacy of thoughts

violated? 3) can neuromarketing findings harm the public? The first two are issues commonly

identified by scholars on neuroethics; the third one is more specific to the neuromarketing field.

The Protection of Human Subjects

 Neuromarketing and Ethics 16

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” (DHHS, 1979). For

instance, under federal standards, Institutional Review Boards (IRB) have direct authority to

clear or reject any research project. Curiously though, none of these standards apply to the

advertising research industry (Murphy, et al., 2008) and, of course, by extension to

neuromarketing companies. For decades, self-regulation has been assumed to guarantee the

protection of research participants and customers of all forms of marketing studies. For example,

The Advertising Research Foundation (2011), a prominent lobbying and research organization as

well as the publisher of the most respected peer-reviewed journal of the industry, The Journal of

Advertising Research, does publish market research guidelines based on a Bill of Rights

originally developed by the Council for Marketing and Opinion Research (2011). These

guidelines are not legally enforceable and recommend that researchers commit to obtain proper

consent, respect privacy of the information they collect, grant participants the option to

discontinue at any time, and maintain the highest standards of professional conduct. Likewise,

the American Marketing Association (AMA) (2011) has guidelines posted on their website. In

both cases though, the emphasis of these codes is to ensure that research protocols followed by

practitioners deliver reliable and valid insights. Neither organization publishes guidelines that

apply specifically to the use of research using neuroimaging technology. This may soon change

as ARF (2010) has announced a belated interest in proposing “neurostandards”. Early drafts of

the initiative show that these standards would primarily protect buyers of neuromarketing

services, not participants of the studies. Finally, since medical devices are regulated by the FDA,

there are rules and regulations that users of fMRI and EEG are supposed to follow. While this
 Neuromarketing and Ethics 17

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. For instance, if people are asked to watch an excessive amount of pictures triggering

cravings for food, alcohol, or cigarettes, it could potentially put subjects in very stressful

situations inside the scanner. In fact, to the degree that subjects receive an incentive to

participate, they might feel somewhat obligated to stay in the scanner with frustration and

discomfort levels that can compromise both their health and the quality and integrity of the data

(Murphy, et al., 2008). While this example may be extreme, it illustrates the potential pitfalls of

using fMRI for a marketing experiment that would not follow proper ethical guidelines.

In summary, the protection of neuromarketing participants from ethical misconduct

appears poorly addressed by both the government and the neuromarketing research industry. A

paper published by the Harvard Review of Psychiatry on neuromarketing practices actually

identified that websites of the top neuromarketing research companies provide little if any

information on the protocols and ethical guidelines they follow during their studies (Fisher, Chin,

& Klitzman, 2010)..

The Privacy of Thoughts

In the last decades, marketing researchers have dramatically improved their ability to

collect information about purchasing behaviors by accessing buying data from loyalty cards,

credit cards, or online browsing patterns (Wilson, Gaines, & Hill, 2008). But nothing compares

to the ability to probe directly the consumer’s mind, which is what neuromarketing companies

claim they can do using neuroimaging technology. 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 (Renvoise & Morin, 2007). A number of scholars have expressed major
 Neuromarketing and Ethics 18

concerns over the possibility that the privacy of thoughts may be violated by neuromarketing

practitioners (Murphy, et al., 2008; Wilson, et al., 2008). Many believe that inner thoughts are

sacred and are constitutionally protected (Tovino, 2006). For instance, Eaton and Illes (2007)

warn that some private information such personality traits, emotions, memories, sexual

preferences, and even lies may be revealed by a brain scan. A study conducted by Kranz and

Ishai using fMRI did establish that sexual orientation may be predicted by specific patterns of

activation in the reward circuitry of subjects viewing faces of the gender they prefer (Kranz &

Ishai, 2006). Likewise, Spence et al were able to demonstrate that lying can be detected by

observing longer response times and greater activation in the bilateral ventrolateral prefrontal

cortices (Spence et al., 2001).

While the concerns about privacy violation appear legitimate, published studies

demonstrate as of yet a very limited ability for neuroimaging studies to decode our private

thoughts. According to Fisher and his eminent colleagues from Harvard University, “the current

state of imaging technology does not allow for accurate, deterministic predictions of human

decision making” (Fisher, et al., 2010). 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. The general lack of consideration and respect for the violation of

private thoughts contributes to the speculation that neuromarketing companies may indeed aim to

manipulate and disrespect intimate, private, and sacred personal information.

The Implications of Neuromarketing Findings

There are two types of neuromarketing findings that may harm participants and possibly

the public at large. One is commonly referred to as incidental findings; the other can be labeled
 Neuromarketing and Ethics 19

as manipulative insights. Incidental findings occur when brain abnormalities are identified as a

result of performing a brain scan during a research protocol. The frequency and seriousness of

such findings have been extensively documented while using fMRI. For instance, Nelson

estimates that more than 5% of brain scans produce incidental findings (Nelson, 2008). Another

team of researchers from Stanford University measured the rate of incidental findings to be a

staggering 6.6%, with a higher incidence for older subjects (Illes et al., 2004). Though no

systematic reporting is in place to confirm these estimates, the issue clearly presents important

challenges that most neuromarketing companies are typically ill-equipped to address incidental

findings for two reasons. First, private researchers are not required to adopt a particular protocol

for dealing with incidental findings. Second, during an experiment, neuromarketing research

companies are not even required to use a board-certified neuroradiologist, the most qualified

person to detect the meaning of an abnormal scan.

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. Also the nature

and methods used to produce such messages has not been extensively investigated. Reports from

neuromarketing studies which are published or shared with the public on various blogs xxx

(Dooley, 2011; Morin, 2011) 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. Also, several mainstream books have popularized general recommendations

which advertisers of all levels can apply to improve the effectiveness of their ads based on

general knowledge gained from brain discoveries (Lindstrom, 2008; Pradeep, 2010; Renvoise &

Morin, 2007) . There is only one scholarly paper published by Ariely and Berns (2010)
 Neuromarketing and Ethics 20

addressing the degree to which neuromarketing may harm consumers. This paper clearly

suggests that there is no evidence advertisers are gaining more power to manipulate consumers

by conducting neuromarketing studies, though the potential for doing so is considered

theoretically likely. Not all scholars agree though. Wilson, Gaines & Hill believe that the near

future will see more commercial integration of neuromarketing findings to manipulate (Wilson,

et al., 2008). They imagine a world in which consumers’ brains will be scanned on the spot and

customized messages instantly generated to trigger the right buy buttons in their brains; a world

in which free will is completely controlled by advertisers.

Conclusion

This paper demonstrates that the ethical and legal context in which advertising agencies

operate in the United States is both weak and fragile. Based on recent history, this situation is not

likely to improve in the short term. Additionally, the growth of new digital platforms has

provided advertisers with more options to test and deploy more deceptive strategies, especially to

push 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, especially those who

are hard to reach and vulnerable such as adolescents. However, there is limited evidence that

advertising agencies have gained more manipulative power using neuromarketing as of yet. 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 tools remains in its infancy.

Clearly, the commercial leverage gained by advertisers using neuromarketing remains, if any,

highly speculative.
 Neuromarketing and Ethics 21

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 discussed in this

paper. It also fosters a general interest and productive dialogue on what neuromarketing can

actually do to enhance the science of consumer behavior in general. The more academic research

is produced by neuromarketers, the more it may potentially influence future policies to increase

protection of vulnerable groups and develop greater public awareness on what consumers can do

to protect themselves from highly manipulative strategies.

 Neuromarketing and Ethics 22

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