Cites Significant Legal Obstacles to Law Enforcement Action
Today, the Federal Trade Commission responded to inquiries from members of Congress regarding whether Section 5 of the Federal Trade Commission Act prohibiting "deceptive" or "unfair" marketing would apply to the practices of the entertainment industry outlined in its September 11, 2000 report, "Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries." The Commission finds significant legal limitations, including First Amendment concerns, to carrying out an effective law enforcement effort in this area. Given these issues, the Commission supports stepped-up self-regulation by the industry coupled with Congressional oversight of those efforts as the best approach to protecting children from exposure to violent entertainment products.
In the letters signed by Chairman Robert Pitofsky, the Commission states that the review by its staff concluded that "significant and unsettled First Amendment issues exist that may affect the viability of an FTC action or remedy." The Commission would likely face considerable difficulties in proving a deception or unfairness case, and questioned whether legal actions premised on self-regulatory programs would provide a disincentive to self-regulation. "Finally, whatever the outcome of FTC enforcement actions under these theories, it seems clear that because of the substantial First Amendment protections accorded these products, a comprehensive and effective self-regulatory response could have a more prompt and substantial impact on the problems described in the Commission's report than would FTC enforcement actions. For these reasons, the Commission believes that the best course is for the Congress to continue efforts to promote substantially improved, voluntary, self-regulatory efforts."
The letters stated "[i]f additional self-regulatory efforts are not forthcoming, then the Commission believes that the Congress should consider whether there are narrowly tailored legislative actions that could encourage more robust self-regulatory initiatives." The letter adds that continued encouragement by Congress of "further, needed reforms can more quickly accomplish many of the same goals that might otherwise be achieved by law enforcement initiatives." The Commission also stated its willingness to assist Congress in this effort in any way possible.
These letters were approved by a Commission vote of 5-0.
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(FTC Matter No. P994511)