Neuroscientists Advocate Legal Limits to Neuromarketing

Having trouble unsealing your yogurt may not be a sign that it’s time to hit the gym. Marcello Ienca, a bioethicist at the École Polytechnique Fédéral de Lausanne, Switzerland, says that the greater the resistance of the yogurt lid, the greater the stimulus to the brain’s desire mechanism. The result is a false sense that the product tastes better than it actually is.

Yogurt sealing is just one of several neuromarketing strategies, an area in which neuroscience techniques are applied in marketing. Through it, customer behavior patterns are analyzed during the decision-making process, knowledge applied in the formulation of advertising campaigns. The model arouses debates about ethical conflicts.

“If you make your brain wait a few more milliseconds, it makes you want yogurt more and think it tastes better,” says Ienca, who is also a member of the Neurotechnology Board of the OECD (Organization for Economic Cooperation and Development ) and the Council of Europe.

“You can use this same strategy to manipulate people at a deeper level, like convincing them to share their data more easily or to spend more money.”

Decision-making takes, on average, up to two seconds, according to Billy Nascimento, PhD in neurophysiology from UFRJ (Federal University of Rio de Janeiro) and founder of Forebrain, a Brazilian research company in neuroscience applied to marketing.

He says that this process does not occur in a rational way: the human being’s behavior is more influenced by his unconscious, above all by emotional issues.

The combination of information collected by neuroscience can help predict some behaviors and drive sales, but it is not possible to track the real impact of neuromarketing. Other variables interfere in this process.

“There’s no buy button in the brain. What there are are behavioral impulses, which were around long before neuromarketing measures were in use,” says Kimberly Clark, professor of consumer neuroscience at Dartmouth University, USA, and co-founder of Merchant Mechanics research consultancy.

“So it’s not about the tools. What marketers have been doing for years is trying to think of tactics and strategies using these stimuli.”

Brands such as McDonald’s, Disney and O Boticário hire companies specializing in neuroscientific research to try to identify what the public values ​​and how they consume it. “To understand who these people are, their desires and needs, I can use psychology, anthropology, sociology… Today what exists is neuroscience, it’s another area that is trying to understand this consumer to make this bridge better”, says Billy Birth.

Surveys can involve the finer details. Google, for example, tested different shades of blue in the search tool to find out which would get more clicks than others.

In general, participants are exposed to stimuli, such as products, images and websites, so that researchers can carefully analyze a wide range of body reactions, in specific technologies or in combination with each other (see box).

The possibility that the stimulus to unconscious responses may lead to manipulation of individuals, especially those belonging to vulnerable groups, worries specialists. Kimberly Clark, for example, says her company does not research children or individuals with intellectual disabilities.

The concern is also shared by Nascimento, who does not serve alcoholic beverage companies, smokers, arms companies, adult entertainment and electoral surveys. “Innovation brings a double-edged sword. When we talk about science and technology, the same nuclear fission that destroyed Hiroshima and Nagasaki is the one that generates clean energy”, says the businessman.

Another central issue in the ethical debate concerns consent: participants in any scientific research must be informed about the central aspects and choose to participate in it. For bioethicist Ienca, neuromarketing should follow even higher standards than academics. “He has access to the most intimate, essential and private source of data, which is the human brain.”

Although some companies have their own code of ethics or follow that of the Neuromarketing Science and Business Association, an international association that represents the category, the market should be regulated by legal structures, especially at the level of human rights, the researcher believes.

Ienca is one of the authors of the proposal for the international recognition of a new category of human rights, the ‘neurorights’, which would have the purpose of ensuring that the data of the mind are protected from interventions and/or exploitation.

The researcher says he is hopeful that neurotechnologies will be used to improve people’s lives, but he points out that this implies weighing the magnitude of the risks and what to do to avoid them. “Ethics isn’t about banning things most of the time, it’s about finding the ideal balance between how to maximize the effect of new technologies and minimize the risks to people.”

Countries such as Chile and France this year passed laws and constitutional reforms to ensure the protection of the mental integrity of individuals.

Another one who defends legal limits is Antônio Carlos Efing, president of the OAB-PR Consumer Rights Commission. The problem, he says, is that the subliminal message doesn’t produce conscious responses — and acting on impulse and emotion is not good for the consumer.

The lawyer defends limits discussed with the market to adapt neuromarketing advertising practices and the criminalization of techniques that alter the autonomy of the consumer’s will. Efing also emphasizes the sheer importance of information. “It is important that people are aware that they are having their senses tested because this is a sales strategy.”

The guarantee of consumer rights is the responsibility of bodies such as the Public Ministry and Procon, which are responsible for upholding laws that preserve the dignity of the person through their autonomy and freedom of choice.