L. Michael Hankes  |  ATTORNEY AT LAW
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Advertising: Edgy or Inappropriate?

In today’s world, as com­pa­nies com­pete to sell their prod­ucts in an increas­ingly com­pet­i­tive envi­ron­ment, adver­tis­ing, both in print and media, seeks to have impact. As adver­tis­ing strives to be “edgy”, there is often a fine line between devel­op­ing “edgy” ads that have impact and those which are inappropriate.

Recently here in Boston, this edgy ver­sus inap­pro­pri­ate adver­tis­ing dichotomy was dra­mat­i­cally illus­trated by mural pho­tographs dis­played at Aber­crom­bie & Fitch cloth­ing stores. Local offi­cials attempted to bring charges in con­nec­tion with the black and white photo murals because the ads revealed what some viewed as too much of the teenage anatomy.

As I watched the news story on the Aber­crom­bie & Fitch ads, I won­dered what posi­tion John Adams, whose birth­place is just down the long hill from our home, would have taken regard­ing the Aber­crom­bie & Fitch ads. Surely, as the lawyer who suc­cess­fully defended the British sol­diers who were charged with the Boston Mas­sacre on March 5, 1770, Adams would have defended the right to free speech rep­re­sented by the Aber­crom­bie & Fitch ads. But I won­dered if pri­vately, Adams would have dis­ap­proved of the ads and found them inap­pro­pri­ate. Clearly, the peo­ple inter­viewed on the street dur­ing the recent tele­vi­sion news story did not find the Aber­crom­bie & Fitch ads to be sub­ject to legal pro­hi­bi­tion, but the major­ity did view the ads as inappropriate.

No doubt these kinds of issues bring to mind some of the “edgy” ads run by Hardee’s/Carl’s Jr. as the cam­paign to revi­tal­ize the Hardee’s brand moved for­ward fol­low­ing the “Rev­o­lu­tion” at the begin­ning of 2003. Thus, the “Paris Hilton”, “Slow Ride”, “First Girl” and “Flat Buns” ads cre­ated con­tro­versy, as peo­ple in many of Hardee’s mar­kets found those ads to be inap­pro­pri­ate. Cer­tainly, the “Flat Buns” com­mer­cial was the most con­tro­ver­sial of all the ads, but per­haps there are lessons to be learned from the mere fact that all of these ads can be viewed and down­loaded all over the inter­net, in some cases years after their orig­i­nal airing.

While some believe that even neg­a­tive pub­lic­ity yields a ben­e­fit because it keeps a par­tic­u­lar brand in the pub­lic eye, the fall­out in local com­mu­ni­ties from such ads is often not worth the price of that pub­lic­ity and can pre­vent the run­ning of such ads at all.

As Hardee’s con­tin­ues to strive to reestab­lish a brand image based upon qual­ity food among other con­cepts, it will be inter­est­ing to note how future Hardee’s adver­tis­ing will main­tain an “edgy” qual­ity designed to impact the public’s per­cep­tion of the Hardee’s brand, with­out being viewed as inap­pro­pri­ate in the mar­kets ser­viced by Hardee’s.

This article is intended for informational purposes only and is not to be relied upon as legal advice, as individual facts and circumstances may vary.