Changing Nature of Consumer Transactions

The cultural history of commercial speech is largely the story of a general movement from product-information to image and lifestyle advertising.²⁹³ What was once a utilitarian vehicle for informing the consumer about an item’s price and characteristics has now become more a personality profile for a company and its products. We buy Nike shoes as much for their symbolic swoosh as for their composition and construction. We buy Ben & Jerry’s ice cream not just because it’s creamy (and caloric) but because the company has a social conscience—it gives “1% for peace.”²⁹⁴ We shop at Eileen Fisher clothing stores not only because of fashionable garb, but also because of fashionable political statements (e.g., “Rape Free Zone”) on “V-Day” banners across their display windows.²⁹⁵

This development has reconfigured transactions in the marketplace of items and ideas, at least as a matter of cultural reality if not legal reasoning. At bottom, it invites us, as citizens, consumers, activists, lawyers, judges, and scholars, to ask: What exactly is it that we are buying? What is the consideration that is being exchanged: dollars for shoes, for corporate image, or for both?

These are crucial inquiries; after all, the character of a transaction determines the nature of private or public harm suffered when the transaction fails. That is, if consumers buy no more than rubber and air cushions in a Nike shoe, then their harm is limited to defects in those product qualities. By contrast, if consumers “buy” Michael Jordan’s athletic agility and sports celebrity, then can they ever be harmed if their expectations are not realized? Then again, if consumers buy Nike shoes tagged with a union bug, are they harmed should that representation prove false?

Traditional breach-of-contract analysis would recognize a wrong and a corresponding remedy in the first situation. The second scenario might be dismissed as no more than corporate puffery. And the third situation seems better suited for analysis under consumer protection and unfair business practices laws. We plan to say more about all of this shortly, but for now we wish to proceed to our second point.