In an age in which two of the five largest tech firms in the United States both earn about ninety percent of their revenues by selling advertising space, it is hard to believe that as late as the 1970s the Federal Trade Commission (FTC)
viewed non-false, non-misleading advertising as anticompetitive conduct capa- ble of violating the antitrust laws.’ But the FTC did, believing that advertising has the power, through repetition and brand image creation, to induce con- sumers to buy things that they do not really want, to the disadvantage of com- petitors selling the things that consumers would otherwise buy.2 From the 1950s to the 1970s, the FTC brought a series of antitrust cases against some of the nation’s largest advertisers, including Procter & Gamble and Kellogg, in which the power of advertising to create an illegitimate competitive advantage through the manipulation of consumer preferences played an important role. Buoyed perhaps by the consumer movement, which peaked during this period, the FTC won the agreement of the federal courts that heavy advertising of S.O.S. scrub pads, the ReaLemon brand of concentrated lemon juice, and Clorox bleach were anticompetitive because, as Justice William 0. Douglas put it in the Clorox case, advertising “imprint[s]” a brand “in the mind of the con- sumer.”‘