by kragen | 2025-04-05 21:34:57+00:00
Maybe you should post a proposal for a law that's a little more specific than "is money being exchanged in order to promote a product? That's advertising." Then we can see if it is in fact possible to prevent 99%, or for that matter 50%, of the harm that comes from modern advertising, without outlawing other things.

Let's consider toomim's three examples: "would you like to try a rosé with that dish? It pairs very well together," giving out free samples, and putting a sign up on your business that says the business name.

The first case seems like it would straightforwardly be illegal under your proposal if the waiter is an employee (or contractor) who gets paid by the restaurant, because the restaurant is exchanging money with the waiter in order to promote the rosé, which is a product. It would only be legal if the waiter were an unpaid volunteer or owned the restaurant.

The second case seems like it would straightforwardly be illegal under your proposal if the business had to buy the free samples from somewhere, knowing that it would give some of them out as free samples, because then it's exchanging money with its supplier in order to promote its products (in some cases the same product, but in other cases the bananas and soft drinks next to the cash registers, which people are likely to buy if you can get them into the store). Also, if one of the business's employees (or a contractor) gave out the free samples, that would be exchanging money with the employee to promote a product. You'd only be in the clear if you're a sole proprietor or partnership who bought the products without intending to give them away, changed your mind later, and then gave them away yourself rather than paying an employee to do so.

Putting up a sign on the business that says the business name is clearly promoting products, if the business sells products. Obviously the business can't pay a sign shop. If the business owner makes the sign herself, that might be legal, but not if she buys materials to make the sign from. She'd have to make the sign from materials unintentionally left over from legitimate non-advertising purchases, or which she obtained by non-purchase means, such as fishing them out of the garbage. However, she'd be in the clear if her business only sells services, not products.

A large blanket loophole in the law as you proposed it is that it completely exempts barter. So you can still buy a promotional sign from the sign shop if you pay the sign shop with something other than money, such as microwave ovens. The sign shop can then freely sell the microwave ovens for money.

In this form, it seems like your proposal would put at risk basically any purchase of goods by a product-selling business, except for barter, because there is a risk that those goods would be used for premeditated product promotion. Probably in practice businesses would keep using cash, which would give local authorities free rein to shut down any business they didn't like, while overlooking the criminal product-promotion conspiracies of their friends.

So, do you want to propose some legal language that is somewhat more narrowly tailored? Because a discussion entirely based on "I know it when I see it" vibes is completely worthless; everyone's vibes are different.