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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