Conjuring the Flag: The Problem of Implied Government Endorsements

Abstract

This Article exposes a prevalent and harmful form of advertising that exploits government actions like patent issuances, FDA authorizations, and trademark registrations. By calling upon the symbolic power of such regulatory approvals—i.e., “conjuring the flag”—marketers deceive consumers, distort competition, and undermine administrative agencies. Using machine-learning techniques to analyze thousands of ads across multiple media formats, this Article offers the first empirical study of this pervasive practice. The study reveals that it is especially prevalent in industry settings where consumers are likely to seek reassurance that a product is safe and effective. Specifically, the data shows that patents are mentioned most frequently in ads for supplements, cleansers, cosmetics, insect sprays, and hair products. It also shows that the USPTO contributes to the problem by registering trademarks that incorporate regulatory references. Consumer protection laws and regulations have failed to curb this practice, as advertisers have found subtle and legally permissible ways to manipulate consumer perception. This Article proposes two legal reforms to empower the FTC to address this issue more effectively. This Article thus sheds light on a crucial intersection of intellectual property, consumer protection, and administrative law.

Keywords: patents, trademarks, administrative law, FTC, FDA, Food & Drug, consumer protection, first amendment, false advertising, intellectual property