I've been listening to the audio version of Martin Lindstrom's Buyology, a book about the neurological basis of marketing. Lindstrom is a branding expert and marketer and reports on what brain scans have contributed to the art of marketing. For example, as Lindstrom recently wrote about in a New York Times op-ed, Inhaling Fear, brain scans of smokers indicated that not only did health warnings about smoking not light up the fear section of the brain, but they actually stimulated the brain's craving spot. Lindstrom describes a host of other discoveries about how the brain responds to marketing. Among these are "mirror neurons," neurons that fire in response to stimulation and cause us to feel what the people we observe are feeling. For example, when we watch a movie with people who feel sad, we feel sad. Similarly, when teens observe attractive models at Abercrombie and Fitch wearing Abercrombie clothes, their mirror neurons flash, and they think they too will feel attractive if they wear Abercrombie clothes (I still don't get why Abercrombie has shirtless guys at the front of their stores, though maybe I don't really want to know the answer to that one).
Does this have any implications for consumer law? I'm not sure. You could argue that brain-scan-based marketing raises questions for consumer law, like is it fair or deceptive to use marketing that is based on how the brain reacts to stimuli. In terms of the FTC's deception analysis, is seeing an attractive model in Abercrombie clothes likely to deceive the teenage consumer acting reasonably under the circumstances into thinking that he or she will be more attractive in Abercrombie clothes, given that the teen's mirror neurons are flashing just that message, even though nothing to that effect is said or implied? I think we have a while to go before the FTC and courts adopt that approach, if indeed they ever do, which may only mean that our consumer protection laws have become somewhat outmoded. Similarly, does the use of mirror neurons, using the FTC's unfariness analysis, cause a substantial injury which cannot reasonably be avoided by the consumer that is not outweighed by countervailing benefits to consumers? It's hard to see a benefit to consumers in the triggering of mirror neurons to stimulate purchases, and consumers can't reasonably avoid something that they're not aware of. Manipulating a consumer into making a purchase the consumer would otherwise not make seems like a substantial injury. But do we want regulators to prohibit the use of this technology to stimulate sales? I'm not sure.
This seems like a fruitful subject for a law review article, and perhaps for FTC study. Science fiction meets consumer law. I hope someone will have fun with it.