Regulating Gender Stereotypes in Advertising: When Persuasion Reinforces Inequality
| Autor | María Guadalupe Martínez Alles |
| Páginas | 133-158 |
LATIN AMERICAN LEGAL STUDIES Volumen 5 (2019), pp. 287-312
REGULATING GENDER STEREOTYPES IN
ADVERTISING: WHEN PERSUASION REINFORCES
INEQUALITY*1
María Guadalupe Martínez alles
**
Abstract
Advertising is information that aims to persuade. The phenomenon
of advertising connects the professional supplier (creator) and
the consumer (receiver) under particular market dynamics and
within the framework of a specic social and cultural context
that reveals the complexity and signicance of the act of
consumption. However, the regulation of advertising has been
mostly focused on the professional supplier’s duty to inform, on
the one hand, and on the consumer’s access to information. In this
article, I argue that in order to assess the scope of the impact of
the phenomenon of advertising in our society and, in particular,
of advertising that conveys gender stereotypes, we must abandon
the simplied construal of advertising as infor mation, of the
professional supplier as informant, and of the consumer as informed
sovereign. Such representations that completely disregard context
can hardly help in the tasks of rethinking regulation of current
advertising and proposing legal responses that are more sensitive
to advertising’s persuasive aspect and thus better suited to deal with
the problem of stereotyped advertising in our society.
Keywords: advertising, gender stereotypes, abusive advertising, cognitive biases, market
manipulation, persuasive advertising, subliminal impact, gender identity, gender equality.
I. INTRODUCTION
The regulation of advertising has generally been approached from the
perspective of its creator, with emphasis on the duty that falls on the professional
supplier to inform the consumer in a truthful, clear, and detailed manner of everything
that relates to the essential characteristics of the goods and services that she provides
*1 I thank Pamela Tolosa for her generous invitation to participate in the Gender, Equality and Law
Program of the National University of the South (Bahía Blanca, Argentina), work from which parts
of this article originate. I also thank the anonymous reviewers for their interesting suggestions and
comments. I particularly thank Ariana Kissner for her excellent research assistance. Of course, the
errors and defects that remain are my sole responsibility.
** Universidad de San Andrés, Buenos Aires, Argentina (mguadamartinez@gmail.com). Article received
on June 22, 2019, and accepted for publication on August 1, 2019. Translated by Ernesto Riffo Elgueta.
María Guadalupe Martínez Alles.
288
LATIN AMERICAN LEGAL STUDIES Volume 5 (2019)
and to the conditions of its commercialization. With regard to the receiver of
advertising, regulation has focused on the consumer’s access to information. It has thus
generally offered tools to protect her against potentially false, misleading, or abusive
advertising that may lead the receiver to draw erroneous conclusions regarding the
product or service in question, that is, breaches of the professional supplier’s duty to
provide accurate information.
Accordingly, from the legal point of view, advertising has mainly been conceived
as information, and the consumer as a rational agent who carefully processes information
in order to reach the consumption decisions that are more benecial to her. By
consequence, protection is warranted only against false, misleading or abusive
information that might lead to error about the essential contractual terms. In other
words, on one side the focus is on whether the supplier offers the information owed
and, on the other, on whether the consumer has sufcient access to that information.
This perspective can only provide a partial view of the behavior of the supplier
and the consumer and of the effects of advertising on the latter. This particular way
of addressing the problematic issues surrounding advertising not only ignores the
inherent complexity of market dynamics and consumer behavior, but also ignores
the way in which professional suppliers and consumers relate to each other within
that context. On the one hand, this approach avoids the fact that the professional
supplier, rather than informing the consumer, is mainly pursuing the goal of marketing
her product or service and attracting as many consumers as possible. In other words,
what the supplier seeks is to persuade the consumer of the advantages and benets
of the product being offered in order to remain competitive, and to that aim she
invests resources and efforts so as to understand the consumer’s behavior. On the
other hand, the approach we are analyzing puts forward a narrow, mainly economic,
understanding of the consumer as the rational actor that processes information and
only seeks to consume in order to meet their individual needs (“sovereign consumer”).
It fails to take notice of the fact that the consumer suffers from cognitive biases that
inuence her consumption decisions, and that the act of consumption takes place in
certain cultural context, and that it has meaning for the consumer that goes beyond the
act of consumption itself (“socially situated consumer”).
From all this it follows that, in order to assess the scope of the impact of the
phenomenon of advertising in our society and, in particular, of advertising that
contains gender stereotypes, we must abandon the simplied construal of advertising
as information, of the professional supplier as informant, and of the consumer as infor med
sovereign. Representations that completely disregard context can hardly help in the
tasks of rethinking regulation of cur rent advertising and proposing legal responses
that are better suited to deal with the problem of stereotyped advertising in our society.
The paper is structured as follows. Section II gives an account of the dynamics
that characterize the context of the market in which the act of consumption takes
place, which is presented as a complex communicative act inseparable from the
phenomenon of advertising. Following lessons learned from the elds of behavioral
economics and social psychology, this Section explores peculiarities of consumer
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