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1992 U. Ill. L. Rev. 301 (1992)
Movies and Product Placement: Is Hollywood Turning Films into Commercial Speech

handle is hein.journals/unilllr1992 and id is 311 raw text is: MOVIES AND PRODUCT PLACEMENT: IS HOLLYWOOD TURNING FILMS INTO COMMERCIAL SPEECH? STEVEN L. SNYDER In the very first case concerning the regulation of commercial speech, the Supreme Court was confronted with a message that con- tained both commercial and noncommercial elements. Fifty years later, the problem still remains of how to classify a message contain- ing both elements. This note addresses a recent and controversial de- velopment in this area, the practice of paying studios to place certain commercial products in their movies. This note first examines the workings of product placement, and then asks whether a movie con- taining such placements would qualify as commercial speech under the various Supreme Court tests. The note concludes that such films should not be regulated under the commercial speech doctrine. I. INTRODUCTION Have you ever eaten Reese's Pieces, the chocolate-covered peanut butter candy that looks suspiciously like M & M's? If so, you probably can thank product placement. Product placement is the arrangement whereby a movie studio incorporates into its film the use of certain com- mercial products.' In return for showing the product on the silver screen, the product manufacturer gives the movie producer its own form of silver-sometimes up to a quarter-million dollars worth.2 Reese's Pieces is the most famous example of product placement. In 1982, a little space alien called E.T. wobbled across America's movie screens.3 In one scene, the creature was shown following (and eating) a trail of Reese's Pieces.4 Although the alien never explicitly told viewers to buy Reese's Pieces, the creature's actions spoke louder than its words. Within several months of the film's release, sales of the previously little- 1. As one marketing executive says, Nothing in the movies is incidental.... If a product appears on camera in a movie, you can be sure somebody put it there. Scott & Bloomquist, Ad Critics Planning Cigarettes, Liquor on TV via Movies, ADWEEK (Eastern ed.), Apr. 3, 1989, available in LEXIS, Nexis Library, Omni File. 2. House Bill Would Restrict Cigarette Advertising, REUTERS, Mar. 2, 1989, available in LEXIS, Nexis Library, Omni File. Phillip Morris Companies, Inc. reportedly paid $350,000 to have Lark cigarettes appear in a James Bond movie. Id. Although the company denied it at the time, Phillip Morris also paid $50,000 to have its Marlboro cigarettes placed prominently in the movie Superman (Warner Bros. Inc. 1978). See Annals of Tobacco Marketing, ADWEEK'S MARKETING WEEK, May 28, 1990, at 20, available in LEXIS, Nexis Library, Omni File. 3. E.T. (Universal Pictures 1982). 4. Aijean Harmetz, Fox to Sell Rights to Plug Goods in Films, N.Y. TiMEs, Dec. 21, 1983, at C19.

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