Using Promises of Protection and Empowerment to Market Guns to Women: Implications For the Unfairness Doctrine

Citation:

Elizabeth Blair and Eva M. Hyatt (1997) ,"Using Promises of Protection and Empowerment to Market Guns to Women: Implications For the Unfairness Doctrine", in NA - Advances in Consumer Research Volume 24, eds. Merrie Brucks and Deborah J. MacInnis, Provo, UT : Association for Consumer Research, Pages: 355-359.

Advances in Consumer Research Volume 24, 1997      Pages 355-359

USING PROMISES OF PROTECTION AND EMPOWERMENT TO MARKET GUNS TO WOMEN: IMPLICATIONS FOR THE UNFAIRNESS DOCTRINE

Elizabeth Blair, Ohio University

Eva M. Hyatt, Appalachian State University

INTRODUCTION

Women are increasingly being targeted by manufacturers of firearms as well as by organizations selling gun-related products and accessories. The National Rifle Association (NRA) estimates that between 12 and 20 million handguns are currently owned by women in the United States (Jones 1993). Anti-gun proponents believe that the targeting of women is largely due to a sales slump in the firearms market and to the fact that the primary market of white males has been saturated (Sugarman and Rand 1994).

As pro-gun forces increase their efforts to recruit women, there has been a corresponding outcry concerning the ethics of targeting this vulnerable population (e.g., Polter 1994; Neuborne 1994). Jones (1994) is particularly cynical about the NRA’s efforts to recruit women through its recent "Refuse To Be A Victim" campaign. While cleverly appealing to both women’s desire for empowerment and their fear-induced need for self-protection, the NRA seems to have researched its market well. Jones warns that the NRA does not really have women’s best interests at heart, but instead is simply trying to increase its numbers due to a saturated male market. She cites as an example a recent campaign for legislation that would authorize police to confisgate guns from men who have assaulted women. Predictably, the NRA did nothing to stand up for women and instead lobbied against this initiative (Jones 1994).

While there is nothing wong with an organization wanting to increase it’s membership, there are several reasons why a concerned woman should be mindful of the organization’s purpose. First, the NRA is a non-profit organization, whose mission is to provide educational materials. (The Legislative Action division has a different tax status.) The NRA has tapped into a greatly underserved niche, providing information on self-defense for women. The NRA now has a "Women’s Issues and Personal Safety Programs" division, whose purpose is to provide self-defense courses, firearm safety training, outdoor skills training, and to protect the Second Amendment. One criticism is that there is no comparably-powerful anti-gun organization that is aggressively providing information on firearms and self-defense. A second criticism is that all firms, whether for-profit or non-profit, must be held responsible for providing accurate information concerning the health and safety of it’s product. Because the NRA would probably lose members if it openly acknowledged the number of innocent people who are killed due to the large number of firearms in the United States, they have a strong motive for trying to keep this information hidden. According to Larson (1994), the NRA is largely responsible for the fact that no federal agency keeps track of the number of nonfatal gunshot wounds each year. The Consumer Product Safety Commission, responsible for monitoring injuries from toy guns and other consumer products, explicitly excluded firearms from it’s jurisdiction, because they feared a battle with the National Rifle Association.

The purpose of this paper is to examine the ethics and public policy implications of promoting of guns and gun-related products to women for the purpose of self-protection. We argue that, in light of the current statistics concerning gun accidents, suicides and homocides, the marketing of guns to women using promises of "empowerment" and "protection" violates current FTC guidelines regarding unfair advertising. This is an especially timely investigation, due to the recent appeal by a coalition of organizations led by the Center to Prevent Handgun Violence to the Federal Trade Commission requesting a ban on firearms advertisements promising protection to women ("Petition" 1996).

THE "GUNS EMPOWER WOMEN" ARGUMENT

There is an argument that gun ownership by women is a move toward empowerment and a way to fight victimization. Leading this new wave of "power feminism," Feminist author Naomi Wolf (1993) uses the increase in gun ownership by women as evidence that women are taking the initiative to fight back and refusing to play the victim role. She has, however, received much criticism for taking this position from feminist critics, who argue that an increase in guns means an increase in violence (Jones 1994). Paxton Quigley, consultant for Smith and Wesson, the apparent leader in the marketing of handguns to women with their LadySmith line, says in her book Armed and Female, "Guns are the great equalizer. They have been symbolic of man’s culture, but why shouldn’t I have the best protection, too? Learning how to shoot can empower women" (Jones 1994).

A related argument uses the increase in violence against women as a reason for women to arm themselves. NRA spokesperson Tonya Metaksa says that, "In the face of violent crime and a criminal justice system run amok, more and more women are seeking to take responsibility for their own personal safety...The NRA is simply fulfilling a need" (Women and Guns, January 1994, p. 10). Another female pro-gun activist (Bates 1993) argues, without substantiating evidence, that guns are actually a strong deterrent of crime, and that a gun is more likely to be used to defend against criminal threat than to kill anybody. An earlier study states that known possession of a handgun by a potential victim is a substantial deterrent to crime and possiby forestalls the commission of a substantial number of violent assaults against women. The authors go on to argue that since there is little difference between male and female capacity for self-defense with firearms, it is a "practical matter" for a woman to own a handgun (Silver and Kates 1979).

THE APPEAL TO WOMEN

Perusal through several recent issues of Women and Guns magazine (a publication put out by the Second Amendment Foundation and targeted at women) indicates that there are at least ten different gun manufacturers targeting women. Most of the ads directed at women are for protective handguns, as opposed to the majority of ads directed at men, which typically feature guns used for hunting or sport shooting. The primary theme in the ads aimed at women is effective, risk-free personal protection and enhanced home security. Many of these ads use a fear appeal approach. In none of the ads is there a warning that the presence of a gun in the home increases the likelihood of death or injury to family members.

The following is a sample of copy from the NRA "Refuse to Be a Victim" 4-page advertisement:

Chances are good you’ll need a personal safety strategy. 73% of all women now over age 12 will be victimized at some point in their livesCover a third of them violently raped, robbed or assaulted. America’s criminal justice system isn’t working to protect you. Almost half of all rape cases are dismissed before trial, and almost half the rapists who are convicted serve less than a year in prison.

Experts agree that the single most important step toward ensuring your personal safety is making the decision to refuse to be a victim. Criminals prefer easy targets.

You stand a better chance of preventing criminal attack if you make yourself difficult to prey upon. That means that you must have an overall personal safety strategy in place before you need it.

This appeal is definitely tapping into and possibly reinforcing the fears expressed by American women (Blair and Hyatt 1995).

In one ad that appeared in Ladies Home Journal (southeast regional edition, July 1992) a mother tucks her child into bed. The headline reads "Self-protection is more than your right...it’s your responsibility." The ad copy recommends a Colt semi-automatic pistol "for protecting yourself and your loved ones," and compares a gun in the home to a fire extinguisher, stating that "it may be better to have it and not need it, than to need it and not have it." Another ad from Davis industries says "What with all the crime in the streets these days, a woman needs a body guard more than ever." The irony of this statement is that the company’s cheap handguns, as well as those produced by its sister company Raven Arms, are among the guns most often implicated in urban crime. In other words, this is a gun that is likely to be used against a woman in an attack (Larson 1994).

The recent Petition (1996) to the FTC by the Center to Prevent Handgun Violence criticizes this and other similar advertising messages for exploiting the public’s fear of crime and for attempting to lure "unsuspecting consumers" to buy their guns. The petition goes on to state that "These ads are unfair and deceptive because they suggest to the consumer that the purchase of a handgun is an effective means of providing for self and family protection without warning the consumer that the introduction of a handgun into the home actually places the home’s occupants at an increased risk of death and injury by gun. Moreover, many of these ads appear to endorse ownership of a handgun by people with young children, with no acknowldgement of the special dangers such weapons may pose to young children, especially if the gun is not properly stored" (p.4).

UNFAIRNESS DOCTRINE

The unfairness doctrine has a long history of controversy, largely due to the fact that it was kept intentionally vague, in order to incorporate any potential situation that might be deemed by the court to be "unfair." In 1914, the Federal Trade Commission (FTC) was given the authority under Section 5(a) of the Federal Trade Commission Act to prevent unfair methods of commerce. The emphasis at this time was preventing unfair competition and other unfair acts among businesses. This narrow view of the FTC’s jurisdictional mandate faded somewhat in FTC v. R.F. Keppel & Bro., Inc (1934). In Keppel, the FTC had sought to bring to a halt a candy manufacturer’s practice of including lottery-type inducements within the candy’s packaging as violative of public policy because it encouraged gambling by children. The jurisdictional issue arose because any of the manufacturer’s competitors were free to include the same inducement in their packaging, so the practice was not "unfair" in the sense of placing other manufacturers at a competitive disadvantage. Nonetheless, the Supreme Court sustained the FTC action, ruling that the FTC’s jurisdiction was not limited to actions likely to have anticompetitive consequences (Harring 1996). The Wheeler-Lea Amendment of 1938 gave the FTC the authority to regulate "unfair or deceptive acts and practices," and was designed to relieve the FTC of the burden of demonstrating competitive harm in unfairness proceedings, as well as to allow the commission to focus more directly on consumer injury than it had previously done. By 1964 the FTC had developed three criteria to consider when probing for consumer unfairness: (1) whether the practice injures consumers, (2) whether the practice violates established public policy, and (3) whether the practice is unethical or unscrupulous. Consumer injury is the most important of the three factors to consider when evaluating a possible unfairness action because a finding of consumer injury can suffice to warrant a finding of unfairness. To bring about an unfairness determination, an injury must be (1) substantial, (2) not outweighed by any countervailing benefits to consumers or competition, and (3) one that consumers themselves could not reasonably have avoided (Harring 1996). In most cases, a substantial injury involves monetary harm, as when sellers coerce consumers into purchasing unwanted goods and services, or when consumers buy defective goods and services on credit, but are unable to assert against the creditor claims or defenses arising from the transaction. Unwarranted health and safety risks may also support a finding of unfairness. Emotional impact and other more subjective types of harm on the other hand, will not ordinarily make a practice unfair. Thus, for example, the Commission will not seek to ban an advertisement merely because it offends the tastes or social beliefs of some viewers.

Another issue that relates to the unfairness doctrine is the "public’s right not to be left uninformed." In this sense the doctrine can be seen as a public interest policy which is concerned with the right to be free from untrue or deceptively incomplete advertising claims. This would include advertising that is silent about negative aspects of the product (Summers 1973). The FTC and courts have long held that an ad is deceptive if it has the tendency or capacity to deceive the public. The first task in the enforcement process is for the FTC to determine the meaning that the public will take from the language and implications of the ad, i.e., the general impression given to the less sophisticated public/target audience (Howard and Hulbert 1973). An ad that is perceived by a substantial portion of the target audience to give a false impression about the product is enough to rule itunfair (O’Toole 1985). Unfairness alone is theoretically enough to test for the legality of ads, and facts which a "reasonably prudent advertiser" should have discovered are required to be disclosed in ads. In addition, the FTC in general has sought restitution of damages in cases of substantial loss to the consumer (Howard and Hulbert 1973). This has important implications for the marketing of firearms to women, especially in light of the petition currently before the FTC.

The unfairness doctrine was not extensively used until 1972, when the Supreme Court (in the case of FTC v. Sperry and Hutchinson) concluded that the consumer, as well as the merchant and manufacturer, must be protected from unfair trade practice (Cohen 1974). The unfairness doctrine has since been applied primarily in two major areas regarding consumers. The first area concerns advertising substantiation. It is unfair for advertisers to make claims about their products without having a reasonable basis for making those claims. In other words, advertisers are required to have documentation indicating that they have a reasonable basis for making a claim, prior to the dissemination of advertisements. The second area involves advertising to children. Because children are not able to protect themselves as well as adults are, ads directed toward children may be ruled as unfair for being unethical, unscrupulous or inherently dangerous. For example, an ad for Spiderman vitamins was ruled to be unfair because it encouraged children to take excessive amounts of the vitamin (Cohen 1974).

With vulnerable adult populations, the unfairness doctrine has provided little recourse, largely due to its subjective nature. With alcohol and tobacco, a large public outcry has sometimes been enough to make the marketer reconsider and withdraw the product or the advertisement voluntarily. For example, PowerMaster Malt Liquor and Uptown cigarettes, both targeted toward African-American consumers, were withdrawn largely due to public protest. Uptown was cancelled before it reached the market, not because of legal action, but because of a highly effective media campaign, led by prominant clergy, activists, and public health specialists. Marketed by R.J. Reynolds, Uptown would have been one of the company’s most potent cigarettes, topped by unfiltered Camels (Koeppel 1990). PowerMaster was a high-alcohol content malt liquor, a product of the G. Heilman Brewing Company. Two Catholic priests from Chicago were largely responsible for unleashing the Bureau of Alcohol, Tobacco, and Firearms (BATF) on an entire $1 billion dollar malt liquor industry. The BATF found PowerMaster guilty of marketing on the basis of alcohol content, objecting to the use of the word "power" as an indicator of alcohol strength (Teinowitz 1991).

Recently, after a 14-year struggle, Congress and the ad industry have agreed on the legal definition of "unfair advertising" (Colford 1994). The advertising industry had hoped that the "unfairness doctrine" would be banned altogether. American Advertising Federation (AAF) President Wally Snyder said "AAF’s opposition to the use of 'unfairness’ to regulate advertising rests on it being too vague, subjective and, we believe, in many cases of questionable constitutionality" (Colford 1993). The AAF board endorsed a congressional compromise that defines unfair advertising as an "act or practice that causes or is likely to cause substantial injury to consumers which is not necessarily avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition." An additional constraint is that there would have to be "reason to believe that the unfair or deceptive acts or practices which are the subject of the proposed rulemaking are prevalent" before the FTC could initiate any industrywide rule (Colford 1994).

UNFAIRNESS AND THE MARKETING OF GUNS TO WOMEN

Social scientists estimate that over 1.8 million husbands in the United States badly batter their wives, and often threaten to kill them. Battering of women by husbands or boyfriends is now the single leading cause of injury to American women between the ages of 15 and 44 (French 1992). Domestic violence figures in one quarter of all suicide attempts by American women (Jones 1994). Women are now more than twice as likely to be attacked by men they know than by strangers (French 1992). These findings, in combination with evidence that most female gun owners are not prepared to shoot men they know (Blair and Hyatt 1995), indicate that gun ownership may not be the remedy for violence that gun manufacturers suggest.

According to the more recent definition of unfairness, the current advertising of guns toward women for empowerment and protection could possibly qualify. The first part of the definition is that the act or practice "causes or is likely to cause substantial injury to consumers, which is not necessarily avoidable by consumers themselves." There is plenty of evidence that guns cause physical injury to consumers, and some of this is definitely out of the consumer’s control. Research by the Centers for Disease Control in Atlanta found that when a gun is used in domestic violence, death is twelve times more likely. These deaths are overwhelmingly the woman’s (Fishman 1993). Joan Sculli, of the Coalition Against Domestic Violence in Hempstead, New York, says that a woman is very likely to have her own gun used against her (Fishman 1993).

In addition to a woman having her own gun turned against her, there is also the possibility that the gun bought to protect the family will be used in a suicide of a family member. Most researchers agree that suicide is the leading cause of death by handgun. Kellermann and Reay (1986), for example, found that for every time a firearm was used for self-protection, there were 1.3 accidental deaths, 4.6 criminal homicides and 37 suicides involving firearms.

The second part of the definition of unfairness is that the act or practice that causes or is likely to cause injury is not outweighed by counterveiling benefits to consumers or competition. There is some limited evidence that gun ownership provides benefits that outweigh the potential injury. The most credible proponent of this point of view is Gary Kleck, a criminologist at Florida State University, who provides scholarly research to support the benefits of gun ownership. Kleck and McElrath (1991) examine data on violent incidents among strangers, taken from the 1979-1985 National Crime Surveys and 1982 Supplementary Homicide Reports. Results indicate that the possession of deadly weapons by a potential victim, including firearms, appears to inhibit attack and, in the case of an attack, to reduce the probability of injury to the victim. However, if a victim is injured in an attack with a gun, their death is more likely to occur than if there were no lethal weapon involved in the attack. Kleck’s theory, that guns actually deter attacks to potential victims (called the "deterrent effect"), is seriously questioned by McDowall, Lizotte and Wiersema (1991). While they admit that there is a potential for a deterrent effect, they believe that Kleck’s findings are insufficient evidence for demonstrating that such an effect exists. First, it is uncertain whether civilian gun ownership deters crime overall, or simply displaces it from one victim to another. In other words, if an offender believes a potential victim is armed, he or she may simply find a substitute who is perceived as less likely to be armed. Secondly, violent offenses commonly involve an element of surprise, and therefore, the victim’s gun is not likely to be ready for use. The total number of offenders successfully killed or wounded by victims is also quite small (Kleck 1988). Finally, even though criminals say that they are deterred when they believe that a potential victim is armed, criminals typically have very limited information about whether a potential victim is armed. Because most citizens keep weapons hidden inside their homes, it is unlikely that criminals will be detered unless the weapon is conspicuously displayed.

The third critieria for unfairness is that the unfair or deceptive practices must be prevalent. The current petition with the FTC indicates that the practice has become prevalent enough to stimulate political action from a number of anti-gun and health organizations. Also, the fact that women have become a prime target market indicates that there is a substantial amount of business to be gained from women. Many women today are wondering whether they should own a gun for self-protection. Even those women who are not initially interested may become interested through a husband or boyfriend (Blair and Hyatt 1995), and are likely to be exposed to gun materials and advertisements. To date, most gun advertisements targeted toward women have appeared in magazines targeted toward the gun enthusiast, such as Women and Guns, Guns and Ammo, and Shooting Times. One advertisement also ran briefly in the Southeastern Regional edition of the Ladies Home Journal. (Most other women’s magazines have refused to run these advertisements.)

In conclusion, most evidence indicates that ownership of guns by women and other citizens is more likely to result in serious harm to the citizen, rather than protecting him or her. That is, the chance for substantial injury to the consumer brought on by the ownership of a gun does not appear to be outweighed by the benefits of gun ownership. There is also evidence to indicate that marketing guns and gun-related products to women is a prevalent practice. Therefore, a strong theoretical and practical argument can be made that it is unfair to advertise guns to women for protection.

RECOMMENDATIONS AND CONCLUSION

Several actions would help to ensure that the FTC takes action to see that these ads are stopped, or at least revised. First of all, it would help to increase the visibility of the case through a major publicity campaign. It could involve women’s groups, health organizations, anti-gun groups, etc. A large amount of negative publicity may cause the companies to withdraw the ad campaign, just like the effective media campaign that was successful in getting R.J. Reynolds to withdraw Uptown cigarettes. If the companies don’t voluntarily withdraw the ads, negative publicity may cause gatekeepers like magazine editors to think twice before running an ad. Effective negative publicity would also stimulate greater attention from regulatory agencies like the FTC or the Bureau of Alcohol, Tobacco and Firearms.

Secondly, petitions to the Federal Trade Commission drawn up with the assistance of lawyers could also stimulate action. The recent Petition (1996) is currently being considered. The FTC could decide to do nothing, or several possible actions might be taken. They might order the companies to discontinue using promises of protection. The FTC might also order that such claims be substantiated with research and statistics. Or, they could order the companies to include a warning label or disclaimer about the possible dangers of owning a gun.

The marketing of guns to women with claims of protection and empowerment definitely meets the criteria established by the FTC to qualify as unfair advertising. However, it is to be determined by the FTC whether or not the ads cause substantial injury, that are not outweighed by countervailing benefits, and are prevalent enough. In the past, the unfairness doctrine has provided little recourse with other vulnerable populations, due to its subjective nature. In some ways, the advertising of guns to women is similar to the marketing of Uptown cigarettes and PowerMaster malt liquor to African-Americans. In both instances, it could be argued that marketers are preying on a vulnerable population; however, the arguments against Uptown and PowerMaster were considered too subjective to warrant an unfairness ruling. Advertisements for guns containing promises of protection and empowrment are likely to be treated similarly by the FTC, unless there is a major change in the current criteria.

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