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March 2014

Arriving at Consensus on Advertising Speech

 

Situation:

A commercial touting the benefits of concrete masonry homes is played on radio stations serving counties in a southeastern U.S. state. The commercial features the voice of an ASCE member who identifies himself as a professional engineer and states that, in his opinion, concrete block construction provides a “better quality, better value” option for homes in the broadcast area.

While the commercial discloses the name of the association that paid for the radio spot, it does not clarify that this association is a consortium of commercial entities involved in the provision of goods and services related to concrete masonry homes. The engineer whose voice is featured in the commercial is an employee of one of the member companies in this association.

A listener is troubled by the professional engineer’s statements in support of this type of home and forwards information about the commercial to ASCE’s Committee on Professional Conduct (CPC).

Question:

Did the engineer’s actions in participating in this commercial violate ASCE’s Code of Ethics?

Discussion:

The members of the CPC felt that the engineer’s statement may have contravened two provisions in the Code of Ethics. First, they noted that advertising speech is most directly addressed in category (f) in the guidelines to practice for canon 5: “Engineers may advertise professional services in a way that does not contain misleading language or is in any other manner derogatory to the dignity of the profession.” Second, the members of the CPC also considered the engineer’s actions with respect to canon 3: “Engineers shall issue public statements only in an objective and truthful manner.” Category (d) in the guidelines to practice for this canon makes a finer distinction: “Engineers shall issue no statements, criticisms, or arguments on engineering matters which are inspired or paid for by interested parties, unless they indicate on whose behalf the statements are made.”

The committee members were troubled by the sweeping nature of the engineer’s statements in support of concrete masonry homes. They felt that the statements did not accurately capture the pros and cons of this type of construction and failed to convey a measurable basis on which to support the claims of better value or quality. They also felt that the ad did not adequately disclose the interests of the advertising sponsor, possibly leading consumers to the mistaken assumption that the statements were made by an independent party.

At the same time, the CPC realized that there was a distinction to be made between a 30-second promotional piece and a more comprehensive professional report. Its members were cognizant of numerous other examples in trade publications and other forms of media in which advertisers had used similar superlatives to describe the merits of their services. Moreover, the committee members were keenly aware of the numerous legal protections applicable to commercial speech both as an expression of an individual’s First Amendment rights and as an essential facet of the competitive marketplace under antitrust law.

In a line of cases dating back to the 1970s, U.S. courts have routinely affirmed the importance of advertising to the “free flow of commercial information.” In 1977 the U.S. Supreme Court struck down a state ban on attorney advertising, arguing that except in cases involving false, deceptive, or misleading statements, advertisements served both “individual and societal interests in assuring informed and reliable decision making.” This includes instances in which the advertising speech includes some element of “puffery.” In a more recent example, the U.S. Court of Appeals for the Fifth Circuit in 2000 rejected a false-advertising case against the Papa John’s pizza chain for the slogan “Better Ingredients. Better Pizza.” The court held that this statement was not false, misleading, or deceptive and that it was merely a “general claim of superiority over comparable products that is so vague that it can be understood as nothing more than a mere expression of opinion.”

When contacted by the CPC, the ASCE member said he believed his statements in the radio advertisement had been “objective and truthful.” While acknowledging his employment with a member of the association, he stated that he had voluntarily taken part in the ad and that neither his employer nor the association had influenced his honest conviction about the merits of concrete masonry homes. With regard to the ad’s sponsorship, he observed that information about the association was readily available online, enabling anyone wishing to learn more to determine the interests of its member organizations.

After a lengthy discussion of the member’s testimony and the advertisement itself, the members of the CPC ultimately accepted the member’s claim that the statements reflected his honest opinion. Moreover, the committee was mindful of the protected status of advertising “puffery,” and its members were unable to point to any portion of the ad that could be categorized as “false, misleading, or deceptive.” Accordingly, the committee concluded that the member’s actions did not rise to the level of an ethics violation and therefore voted to dismiss the case.

The CPC then sent a letter to the member advising him of the decision but informing him that, in its opinion, his conduct raised certain ethical issues. The committee pointed out that a member of the general public might be expected to consider statements by a licensed professional engineer more credible than those by a nonprofessional spokesperson and that this additional credibility had probably been the reason for using an engineer in the ad. The committee cautioned the member to remember his ethical obligations in future communications and to avoid generalized statements that might lead a customer to make decisions without an appropriate understanding of the issues.

Given the tension between professionalism and commercial speech, what guidance is available to engineering professionals seeking to meet their ethical obligations while looking out for their own business interests or those of their employers? Engineers are by no means the only professionals who have grappled with this issue. Language addressing advertising conduct also can be found in model rules promulgated by, for example, the American Medical Association, the American Bar Association, and the American Institute of CPAs.

In fact, many of the ethical guidelines offered by these other codes can be easily applied in the context of engineering. For example, rule 7.1 in the American Bar Association’s Model Rules of Professional Conduct prohibits communications that do any of the following:

  • Contain a material misrepresentation;
  • Omit facts necessary to make the statement not materially misleading;
  • Are likely to create an unjustified expectation about results the professional can achieve;
  • Compare the professional’s services with those of other professionals, unless the comparison can be factually substantiated

Prohibitions found in the American Institute of CPAs’ Code of Professional Conduct (section 502-2) cover advertising statements that do any of the following:

  • Imply the ability to influence any court, tribunal, regulatory agency, or similar body or official;
  • Give the impression that services will be performed for a specified fee or fee range when it is likely at the time of the statement that actual fees will be substantially higher.

With many professional codes imposing similar restrictions, it could be argued that the various codes reflect a consensus among professionals about advertising speech. The professional, according to this consensus, has latitude to express conviction in discussing the merits of his or her products or services, but the public must be protected from harmful reliance on deceptive “expert” claims.  —TARA HOKE

Members who have an ethics question or would like to file a complaint with the Committee on Professional Conduct may call ASCE’s hotline at (703) 295-6061 or (800) 548-ASCE (2723), extension 6061. The attorneys staffing this line can provide advice on how to handle an ethics issue or file a complaint. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.

Tara Hoke is ASCE’s assistant general counsel and a contributing editor to Civil Engineering.

 

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