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50 Duq. L. Rev. 605 (2012)
Simply Irresistible: Neuromarketing and the Commercial Speech Doctrine

handle is hein.journals/duqu50 and id is 611 raw text is: Simply Irresistible: Neuromarketing and the Commercial Speech Doctrine Marisa E. Main* I. INTRODUCTION ........................................................... 605 II. THE COMMERCIAL SPEECH DOCTRINE ........................ 606 III. NEUROMARKETING ..................................................... 615 IV. POTENTIAL REGULATION OF NEUROMARKETING UNDER THE COMMERCIAL SPEECH DOCTRINE ............. 627 A. Neuromarketing Could Create an Unfair Bargaining Process ......................................... 627 B. Substantial Government Interests Support Neuromarketing Regulations Under Central Hudson ................................... 632 C. Government-Required Warnings on Neuromarketing as Compelled Commercial Speech ......................................... 637 D. Revival of the Greater/Lesser Principle in the Neuromarketing Context ....................... 640 V . CONCLUSION .................................................................... 643 I. INTRODUCTION Recent developments in neuroscience allow marketing research- ers to watch our brains react to advertisements and observe not only our conscious thought process in response to an advertise- ment, but also how our subconscious processes an advertisement.' With this window into our minds, neuromarketing research allows companies to tailor advertisements to elicit reactions we may not * Marisa E. Main, Judicial Law Clerk, United States District Court for the Western District of Kentucky; B.A. 2007, the Ohio State University; J.D. 2011, University of Akron School of Law. The author would like to thank her wonderfully supportive family, especial- ly her husband, Brett Versen, for his unwavering love and patience, her mother, Mary Ann Palmer, for her endless strength and support, Dalton Main for his good-heartedness, Anna Palmer for her exceptional insight, her father, Charles Main, and her stepfather, Dan Palmer. The author also thanks Professor Jane C. Moriarty for this opportunity and help- ful comments on an earlier draft, and Sara Radcliffe for her invaluable research assistance. 1. See infra note 56 and accompanying text. 605

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