Is Marketing Ever Too “Pushy?” A Comparison of US and EU Approaches to Consumer Unfairness


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In its attempt to sell products and services, marketing is inherently pushy. Consumers both tolerate and generally learn to resist typical informational and emotional marketing appeals. While consumers may happily accept the costs of resistance in exchange for robust market purchasing opportunities, sometimes they may reluctantly give in to marketing pressure to buy. The factual informational content of marketing solicitations are regulated in many jurisdictions under schemes to address deception. The non-factual selling aspect, if regulated at all, would presumably be addressed under the heading of consumer unfairness. This paper compares the US FTC’s consumer injury based approach to consumer unfairness with the EU’s new Unfair Commercial Practices Directive. It concludes that the Directive’s three dimensions of unfairness: Coercion, Harassment, and (undue) Influence are useful constructs for analyzing the non-factual selling aspect of marketing practices but that both approaches are vague and could benefit from additional marketing research.


Consumer Protection Law | Law | Marketing

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