Grand Theft Oreo: the constitutionality of advergame regulation.

• Author: Grossman, Seth

In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video games"--refers to video games created by companies to promote their products or brand. The use of advergames reflects a broader trend in marketing practices away from segmented advertisements and toward advertising messages that are integrated into what have traditionally been viewed as forms of highly protected noncommercial speech. (1) As the media landscape becomes increasingly filled with advertising hybrids--types of media that are essentially advertisements but are presented as, for example, movies, books, or songs-courts will have to decide how regulations of these hybrids should be evaluated. (2)

This Comment explores that issue by analyzing advergames used to promote unhealthy food to children. Because the use of these advergames has already prompted calls for government regulation, (3) this context provides an ideal vehicle for analyzing a vital but unexplored legal question: What First Amendment standard should apply to regulations of advergames? To address this question, this Comment will examine two highly unsettled areas of First Amendment law: the appropriate level of scrutiny for evaluating regulations of video games, on the one hand, and commercial speech, on the other. Applying these aspects of First Amendment doctrine to restrictions on advergames, this Comment proposes a general framework for how courts should review First Amendment challenges to regulations of advertising hybrids.

Part I explains the nature of advergames, why they have become central to advertising and marketing practices (including those for unhealthy food aimed at children), and what types of regulation may soon be applied to them. Part II examines a potentially major obstacle to the regulation of advergames: the line of recent federal cases that apply heightened First Amendment protection to video games. This Comment argues that these cases do not present an insurmountable barrier to the regulation of advergames because they do not hold that video games are a per se category of highly protected speech. Rather, properly read, these cases hold that video games are considered highly protected speech for the purposes of First Amendment analysis only if they have certain characteristics such as narratives, themes, and sophisticated visual and auditory elements. Because most, if not all, existing advergames do not possess these characteristics, this Comment concludes that they do not qualify for the heightened First Amendment protection given to movies, books, and some video games. As a result, Part III asserts that regulations of advergames should be assessed using the less restrictive standards for evaluating limitations on commercial speech, under which it would be possible for the government to regulate the use of advergames that promote unhealthy food to children. The Conclusion then discusses the broader implications of this argument for other types of advertising hybrids.

1. THE NATURE OF ADVERGAMES

   Unlike traditional video games such as Grand Theft Auto--which now rival movies in the level of sophistication of their narratives, artwork, musical components, and production values (4)--advergames are typically rudimentary, involving relatively simplistic animation and music as well as minimal plot or character development. They feature the product in a prominent role and are often made available on the company's website or on general online gaming websites. (5) While advergames have become increasingly popular in a range of industries, (6) food companies have seized upon them with particular zeal to market unhealthy food--including candy, cookies, cereal, fast food, and soda--to children. Nabiscoworld.com, for instance, offers a range of advergames that incorporate its products, including Oreo Dunking, which challenges the player to catch as many Oreos as possible in her glass of milk. (7) On candy company Lifesavers's website, a child can play Boardwalk Bowling, an electronic version of Skee-Ball in which the player bowls a ball into holes that resemble Lifesavers candies. (8)

   Food companies, like those in other industries, have embraced advergames as a marketing tool in recent years for four major reasons. First, advergames are a more cost-effective means of marketing than traditional types of advertising. They are cheaper to develop and the expense of hosting them on websites is minimal, especially in comparison to commercial airtime. (9) Second, because children are spending more time on the Internet and playing video games, advergames are a particularly effective way for marketers to reach young people (10) and hold their attention. (11) Third, according to some experts, as a result of the games' interactivity, players are more likely to retain the advertising messages of advergames than those of traditional commercials. (12) Fourth, unlike traditional commercials, advergames are conducive to viral marketing: If players enjoy a game, they can forward it to friends through e-mail and encourage them to play. (13)

   As food companies' use of advergames has grown exponentially, various individuals and groups concerned about the role of the media in fueling the rising childhood obesity rate have called on the government to more aggressively regulate advergames and other forms of marketing. In particular, they have pushed Congress to give the Federal Trade Commission (FTC) authority to regulate advergames and other marketing practices (14)--authority that Congress denied the agency in the early 1980s. (15) Senator Tom Harkin has proposed...