Advertising and Halacha by Rabbi Howard Jachter

5757/1996

            The Orthodox Caucus (a Yeshiva University-sponsored think-tank compromised of Rabbinic and lay leaders) has recently been encouraging Orthodox institutions to emphasize Torah teachings concerning ethics.  In this spirit, this week we will discuss the issue of advertising and Halacha.  This is an especially appropriate topic for Parshat Mishpatim which teaches us   , that we must distance ourselves from falsehood.  Our discussion will be based on Rabbi Dr. Aaron Levine's (an outstanding Talmid Chacham and economist who chairs the economics department at Yeshiva University) chapter on advertising ethics in his book Economics and Jewish Law.

 

- The Good Faith Obligation

            The Torah (Vayikra 19:36) teaches us our obligation to maintain honest weights and measures in our commercial interactions -      .

            The Gemara (Bava Metzia 49a) adds that not only should our "hins" - weights, be just, but our "hains" (yes, in Aramaic) and "lavs" (Aramaic for no) must be just.  Abayei explains that we should not speak    , one shouldn't speak one thing and intend an other.  The Rambam (Hilchot Deot 2:6) writes that "it is forbidden for one to engage in sly and cunning behavior and speech... rather, truthful speech, a pure heart, and upright speech" should characterize our behavior.

            Accordingly, Dr. Levine outlines a number of advertising techniques which violate this   ("good faith") rule.  When Folger's touts its coffee as being "mountain grown," this is less than forthright, because in truth, all coffee is mountain grown.  "Folger's claim creates a false impression of uniqueness, even though it makes no claim that competing brands are not mountain grown."

            Another example of a violation of the   rule was an advertising ploy of TWA.  Most airlines offer economy and first-class service.  In order to appear to offer a unique service, TWA started calling its first class service "Ambassador Service."  After the airline trademarked "Ambassador Service" it proceeded to advertise that "TWA is the only airline that offers Ambassador Service."  This is a lack of   because Ambassador Service is essentially the same as the standard first class service.

            A fine example is a kosher product (replete with three (!!) different kashrut endorsements) which prints in large letters on the package the words "fat free" and the figure 97%  in tiny letters above the words "fat free."  The food is kosher.  The package is Treif!

 

Exaggeration

            The obligation of   does not preclude creative advertising.  One could advertise Ajax as "cleaning like a white tornado" if it is clear that it is an exaggeration and thus no deception is involved.  We find the Torah itself can exaggerate (see Ramban to Vayikra 19:18), as Chazal do (see, for example, Tamid 29a).  Indeed, sometimes Chazal encouraged us to exaggerate (see Ketubot 17a). Even though we say that in commercial dealings we ignore unarticulated thoughts -     - if the thoughts are understood by all ( ) then such thoughts are significant (see Tosafot Kiddushim 49b s.v. ).  Similarly if it is implicitly understood by all that creative exaggeration is involved, then no one is deceived.  Of course, children require special protection as they are quite likely to be unable to perceive the exaggeration and may be easily deceived.

            Dr. Levine writes that advertisements should be pilot-tested in focus groups to determine whether the audience is deceived or not.  We may add that in a Torah society, it is the responsibility of the Beit Din to monitor commercial advertisement for deceptive practices.  The Rambam (Hilchot Sanhedrin 1:1) describes how  (Rabbinic judges) or their agents must circulate in the markets to examine the weights, measures, and prices in order to rectify any impropriety.  Similarly, Beit Din is charged with the responsibility of monitoring the advertising industry.

 

- Undeserved Good Will

            The Talmud (Chulin 94a-94b) describes at length the prohibition of  , of creating a false impression and thereby generating undeserved good will.  Many Rishonim, in fact, believe that the prohibition is part of the Torah prohibition against theft ( ); see Ritva to Chullin 94a.  For example, one should not represent the meat one sells to a gentile as kosher if it is not kosher.  This prohibition applies even if one has not charged the gentile any more money that the market price of non-kosher meat.  Rashi (s.v. ) explains that the "theft" is due to the fact that the gentile is led to think that the seller likes him very much and thus has invested energy and time to render the animal kosher.  As a result, the gentile will feel a sense of good will towards the seller, when in truth the seller does not deserve this.

            Similarly, Dr. Levine writes that if certain items in a store are not selling, then one may not run a sale on those items if it is described as a "discount sale."  The businessperson is generating undeserved good will (and good will is essential for a business to thrive) by giving the impression that he is choosing to discount the prices to benefit the public.  This constitutes   because in truth it is market forces (lack of demand) that is pushing down the price of the items.  Dr. Levine writes that it would be more appropriate to describe the event as a "clearance sale" instead of a "discount sale."

 

Inciting the Buyer to Live Beyond His Means

            We find the Torah discouraging one from living beyond his means.  Examples include the sliding scale of sacrifice,   , for one who violated certain prohibitions (Vayikra 5:1-14).  The Torah obligates the wealthy to bring expensive animals, the middle class may bring less expensive animals, and the poor are required to only bring flour.  The Sefer Hachinuch (h 123) writes that we see from these laws that one should not live beyond his means.  The Sefer Hachinuch goes as far as saying that if a poor man offers a wealthy individual's sacrifice, he has failed to fulfill his obligation.  The Minchat Chinuch, however, cites the Rambam who disagrees with this assertion and cites a Mishna in Negaim (14:12) which appears to contradict the point.

            Chazal elsewhere stress the importance of living within one's means.  The statement in Avot that  ?   - Who is wealthy? One who is content with his lot." - certainly encourages one to live within his means.  The Gemara (Ketubot 50a) relates that in  the rabbis instituted that     , that one who wishes to give charity generously should not give more than twenty percent.  Rashi explains that this is a precaution to avoid economic ruin.  The Gemara in Chulin (84b) outlines how one should spend his money:

"One should eat and drink less than he can afford, and dress in accordance with his means, and he should honor his wife and children beyond what he can afford."

            Finally, the Rambam (Hilchot Deot 5:11) teaches that one should first acquire a means to earn a living, then buy a house, and only then to marry, in order that one's financial affairs should be in order.

            In light of all these sources, it would appear that a Beit Din should monitor commercial advertising so that it does not extol and strongly encourage a society to live an extravagant lifestyle.   Dr. Levine points out that a seller is not obligated to research a buyer's financial status before he sells him an expensive item in order to make sure that he truly can afford the item.  However, if the seller is aware of the buyer's financial circumstances and encourages him to purchase an object he cannot afford, he has violated a Torah prohibition of     , "Do not place a stumbling block in front of the blind (Vayikra 19:14)."  Rashi explains that this refers to giving ill-suited advice to others.

 

Advertising that Arouses Envy

            Chazal strongly discourage inciting envy of others.  The following two Talmudic passages illustrate this point.  The Gemara (Taanit 10b) states:

"Our rabbis taught....  If one journeys from a place where they do not fast to a place where they do fast, he should fast with them....  If he forgot and ate and drank, let him not do so in public, nor may he indulge in delicacies, as we find in the Torah that 'Yaakov said to his sons why should you show yourself?(Bereishit 42:1)'  Yaakov was teaching his children that when you are fully satisfied, do not show yourselves before Aisav or Yishmael, that they should not envy you."

In a similar vein the Talmud (Moed Katan 27a) states:

"At first the practice was that wealthy people would bring food to a house of mourning in gold and the poor would bring food to a house of mourning in baskets of peeled willow twigs, and the poor felt shamed - therefore they instituted that everyone should bring food in baskets of peeled willow twigs due to sensitivity to the poor.

At first, the rich were served drinks in a house of mourning in [expensive] white glasses and the poor were served in colored glasses, and the poor felt shamed.  It was therefore instituted that all should be served in colored glass due to sensitivity to the poor."

            The Talmud (Berachot 29a) goes as far as forbidding the open display in a cemetery of one's fulfillment of Mitzvot,so as not to "poke fun" ( ) at the dead's inability to fulfill mitzvot.  Finally, Rabban Gamliel's institution of using simple shrouds to avoid shaming the poor (Moed Katan 27b) shows the importance of not arousing envy in the less fortunate and not embarrassing those who can not afford a certain item.

            Dr. Levine applies the passages to contemporary situations. He writes that luxury items should not be advertised in the mass media as it stirs up feelings of envy.  "Since Jewish law forbids envy-generating conduct, such advertising messages violate Jewish business ethics."

 

Conclusion

            We have reviewed some aspects of advertising from a halachic perspective.  It is important to remember that the rules we have articulated are not relevant exclusively to someone who works in the advertising industry.  Everyone will advertise something at some point in his life and should bear these laws in mind.  Following the halachic-ethical guidelines is not simple, but it does not foreclose creativity and effective advertising.  With proper sensitivity and care one can be both effective and adhere to halachic-ethical standards.  For a fuller treatment of this issue see the second chapter of Dr. Levine's aforementioned work, Economics and Jewish Law.

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