Social negative option marketing: A partial response to one of Spotswood, French,
Tapp and Stead’s (2012) “uncomfortable questions”
C. W. Von Bergen
John Massey Professor of Management
Department of Management & Marketing
Southeastern Oklahoma State University
1405 N. Fourth Avenue, PMB 4103
Durant, Oklahoma 74701-0609
580.745.2430
Fax: 580.745.7485
cvonbergen@se.edu
Morgan P. Miles
Tom E. Hendrix Chair of Excellence in Free Enterprise and Professor of Marketing
Department of Management, Marketing, and Information Systems
College of Business and Global Affairs
University of Tennessee – Martin
Mmiles6@utm.edu
&
University of Tasmania
24-8-2014
1
Abstract
Purpose: to address one of Spotswood et al.’s (2012) “uncomfortable questions.” The
paper applies negative option marketing (NOM) to social marketing and then uses the
Hunt-Vitell (1986, 1993, 2006) Theory of Marketing Ethics to evaluate it against
President Kennedy’s (1962) Consumer Bill of Rights and the American Marketing
Association’s (2014) statement of marketing ethics?
Design: a conceptual assessment of the ethics of NOSM.
Findings: when assessed using the Hunt-Vitell (1986, 1993, 2006) Theory of Marketing
Ethics NOSM possesses neither ethical means nor socially desirable ends.
Practical/Social Implications: the findings suggest that although NOM is an attractive
social engineering technique social marketers should avoid using NOSM due to its ethical
implications.
Originality: this study’s contribution is that it applies an accepted ethical theory to show
how, for the first time, that NOSM is not ethical.
Keywords: Negative Option Social Marketing, Nudges, Ethics
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Social negative option marketing: A partial response to one of Spotswood, French,
Tapp and Stead’s (2012) “uncomfortable questions”
“The search for a clear definition of optimum social welfare (or social good) has
been plagued by the difficulties of interpersonal comparisons. The emphasis, as is
well known, has shifted to a weaker definition of optimum, namely, the
determination of all social states such that no individual can be made better off
without making someone else worse off” (Arrow, 1950: 329).
“Because social marketers are not (usually) elected by the public
(though they may work for people who are), they require some justification
to answer the charge that their social marketing activities are not simply the
efforts of one group trying to impose its ways on other people” (Brenkert,
2002: 19).
Spotswood, French, Tapp and Stead (2012) in a recent issue of this journal offer seven
questions that articulate some of their concerns about social marketing. While the questions are
highly interrelated, the first question discussed by Spotswood et al. (2012: 165) is the focus of
this paper:
“Should social marketers use implicit (rather than explicit) behavior
change techniques?”
The academic debate on the ethical dimensions of social marketing has been evolving
since the late 1970s when Murphy, Laczniak, and Lusch (1978: 195) noted that
“Today, politicians, charities and symphony orchestras
are promoted like the newest dish detergent.”
These authors developed a typology of social marketing programs that attempted to address
questions like the ethics of using such marketing to promote the value judgments of special
interest groups like the Sierra Club, the Hemlock society, or pornographers. In a subsequent
empirical study, Laczniak, Lusch, and Murphy (1979) asked both academics and practitioners
about the ethical issues of using marketing techniques to sway social opinion and found that
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there was concern that social issues should not be promoted through modern marketing methods.
In fact, Laczniak et al. (1979: 35) asked:
“Is the increased involvement of marketing specialists in the promotion of ideas, personalities, and organizations a beneficial
development from the standpoint of U. S. society? … What
constitutes a “good” (or bad) product or idea? … How can possible
abuse of social marketing be controlled?”
These questions become more salient as marketing exchanges are mediated through
digital technology and where socially “virtuous” selections can be programmed by “choice
architects” who help to “shape” the situations in which people encounter choices. These
“nudges” are often created by government behavioral insight units that are helping “form” the
publics’ choices toward what is in the publics’ best interest (Cornwall, 2014). In a similar vein,
Shove (2003) suggested that the only choice really offered through involuntary “choice editing”
is where the alleged socially undesirable (but importantly not illegal) options are simply edited
out (see Lang and Gataher, 2009).
PURPOSE
The purpose of this paper is to attempt to address one of Spotswood et al.’s (2012)
“uncomfortable questions” by first considering negative option marketing (NOM)—a practice in
which a “customer’s silence or failure to take an affirmative action to reject goods or services or
to cancel the agreement is interpreted by the seller as acceptance of the offer” (Federal Register,
2003, p. 4670)—and applying it to social marketing. We then evaluate it against President
Kennedy’s (1962) Consumer Bill of Rights and the American Marketing Association’s (2014)
statement of marketing ethics to determine if social marketers should answer the normative
question of whether they should use negative option social marketing (NOSM)? In addition to
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these more general concerns we examine two key ethical considerations that critics have leveled
against the use of defaults, a key element in NOSM—lack of transparency and the adverse
impact of default rules that may prove especially harmful to at risk populations that can least
afford to be harmed.
NUDGING—THE TOOL OF NOSM
Nudge theory and the concept of nudges was named and popularized by Thaler and
Sunstein (2008) based on the work of Kahneman and Tversky (e.g., 1979). Thaler and
Sunstein’s (2008) work made a portfolio of heuristic tendencies from psychology,
communication, economics, political science, and marketing cohesive, comprehensible, and
highly marketable. The concepts drawn upon by Thaler and Sunstein (2008) are also consistent
with other recent books (e.g., Ariely, 2010; Cialdini, 2008; Heath and Heath, 2010; Kahneman,
2011) about change and influence that rely on insights from marketing and social sciences on
how decisions are actually made and suggests that human judgment is often guided by simple,
oftentimes irrational principles.
Nudges gently push people to make decisions by changing the way choices are presented.
Social nudging involves engineering people’s choices so as to channel them to make more
socially desirable decisions (from the perspective of the policymaker) without substantively
limiting their choice. Nudges are not legal or regulatory mandates. Taxing “un-healthy” food at
a higher rate than “healthier” food is a nudge; making “un-healthy food” illegal is not.
Nudging—framing people’s choices so as to direct them to certain outcomes promoting a
“good society” (Dolan, Hallsworth, Halpern, King, and Vlaev, 2012: 16) without substantively
limiting choice—has become fashionable (Thaler and Sunstein, 2008; Willis, 2012). “Nudges
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are ways of influencing choice without limiting the choice set or making alternatives appreciably
more costly in terms of time, trouble, social sanctions, and so forth” (Hausman and Welch, 2010:
126). They are low cost to both the person targeted and the organization or agency employing
them; they are passive/easy in that they require little effort; and they push people to make
choices that are good for themselves or society by taking advantage of imperfections in human
decision-making abilities (French, 2011). Nudges often include a variety of soft touches as
outlined by Bonell, McKee, Fletcher, Wilkinson, and Haines (2011):
“Nudges might involve subconscious cues (such as painting targets
in urinals to improve accuracy) or correcting misapprehensions about
social norms (like telling us that most people do not drink excessively).
They can alter the profile of different choices (such as the prominence
of healthy food in canteens) or change which options are the default
(such as having to opt out of rather than into organ donor schemes).
Nudges can also create incentives for some choices or impose minor
economic or cognitive costs on other options such as people who quit
smoking banking money they would have spent on their habit but only
being able to withdraw it when they test as nicotine free” (p. d401).
The use of nudges to shape behavior has become so popular that in 2010, U. K. Prime
Minister David Cameron set up the Behavioral Insights Team—or nudge unit to “persuade
citizens to choose what is best for themselves and society” (Basham, 2010: 4). Three years later,
the team has doubled in size because of its success in nudging British consumers to pay taxes on
time, insulate their attics, sign up for organ donation, stop smoking during pregnancy, and give
to charity. Likewise in the U. S., the Obama administration embraced nudges (Dorning, 2010)
and has used them to increase enrollment in the President’s signature piece of legislation, The
Patient Protection and Affordable Care Act (Maher, 2012).
While nudges can be effective in promoting some behaviors they are not intended to
represent a comprehensive repertoire of behavioral change interventions (French, 2011). Choice
architecture, a term coined by Thaler and Sunstein (2008), describes the way in which decisions
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are influenced by how the selections are framed or presented. Social nudges can range from
shrinking plate sizes in cafeterias so that people implicitly reduce portion size (Wansink, 2006)
to repainting roadways in order to create the illusion that drivers are going too fast (Selinger and
Whyte, 2011).
DEFAULTS
The quintessential illustration of a nudge is a default which is the designated course of
action for those who fail to explicitly choose for themselves (Willis, 2012). Default options are
automatically chosen when individuals make no active choice and stay with the given state or
condition (Brown and Krishna, 2004) and are sometimes considered “hidden persuaders” (Smith,
Goldstein, and Johnson, 2009: 1) because people tend to continue with preset options.
Default options can exert a significant influence on behavior. Compared to the nonenrollment default, governments that presume citizens as willing organ donors have markedly
higher donation rates (Abadie & Gay, 2006; Johnson & Goldstein, 2003); companies with
automatic 401(k) enrollment have more employees who save for retirement (Madrian & Shea,
2001); cities with “green” electricity defaults have lower energy usage (Pichert & Katsikopoulos,
2008); and states with limited tort default have drivers who pay lower insurance premiums
(Johnson, Hershey, Meszaros, & Kunreuther, 1993). Default effects have also been observed in
the use of advanced medical directives, internet privacy preferences, legal contracts, medical
vaccine adherence, and even for how psychologists choose to analyze their data (Bellman,
Johnson, and Lohse, 2001; Chapman, Li, Colby, and Yoon, 2010; Fabrigar, Wegener,
MacCallum, and Strahan, 1999; Johnson, Bellman, and Lohse, 2002; Korobkin, 1998; Kressel,
Chapman, and Leventhal, 2007; Young, Monin, and Owens, 2009).
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Thus, defaults matter and their appeal is considered so strong that they have been referred
to as the “iron law of default inertia” (Ayres, 2006: 5). Their influence is due in large part to the
following fundamental reasons:
1. Implied Endorsement. People sometimes treat defaults as a form of implicit advice.
When choice architects have explicitly chosen the default, consumers tend to believe that
they should not depart from it unless they have information that would justify a change
(McKenzie, Liersch, and Finkelstein, 2006). Consumers assume that the default was
chosen as providing the typically best choice (Madrian and Shea, 2001).
2. Effort. Default effects are also partially due to effort (Samuelson and Zeckhauser, 1988).
Making a decision involves effort, whereas accepting the default is easy. To alter the
default rule, people must make an active choice to reject that rule. Especially (but not
only) if the question is difficult, technical, or with social implications it is less taxing to
defer the decision by accepting the default.
3. Status quo. Defaults, by design represent the existing state or status quo. The status quo
bias is a psychological principle which involves the propensity of decision makers to
keep things the way they are (Samuelson and Zeckhauser, 1988) often leading humans to
make choices that guarantee that things remain the same, or change as little as possible.
This preference results in inertia.
Defaults do not force anyone to do anything. On the contrary, they maintain freedom of
choice. Whether people opt out or opt in, they are permitted to do so as they see fit. Default
rules nonetheless have a large impact, because they tend to stick (Johnson and Goldstein, 2004).
Defaults can be valuable and worth a fight. For example, search engines like Google and MSN
want their browser to be the default preloaded on computers and go to court to preserve such
status so as to garner more of the roughly $20 billion search-advertisement market (Kesan &
Shah, 2006).
NEGATIVE OPTION MARKETING
Marketers have exploited the power of defaults within a NOM framework where the
consumer’s failure to reject or cancel an offer (i.e., to act) signals consent. NOM, also referred
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to as advance consent marketing, automatic renewals, continuous-service agreements, unsolicited
marketing, inertia selling, “free trial” offers, or “book-of-the-month” type plans, uses defaults to
take advantage of the tendency toward the status quo and inaction to achieve marketing
objectives (Sunstein, 2013). NOM requires that consumers take action so as to not purchase the
product or service (Licata and Von Bergen, 2007). NOM incorporates an opt-out default in
which consent is presumed and where not explicitly making a choice, doing nothing, or being
silent means agreement. Individuals must explicitly become involved and take steps to prevent
the default from occurring and the sale from consummating (Lamont, 1995). An example of a
NOM program is the “carbon off-set” scheme by Qantas Airlines which “encourages” their
customers to make a more environmentally friendly decision by a opt out donation to an
approved organization that uses the funds to allegedly offset the passenger’s share of flight
emissions each time they fly by some form of carbon sequestration action. Customers who do
not wish pay the extra fee must explicitly opt out of the purchase of the carbon off-set during the
on-line transaction.
Four types of plans generally fall within the NOM category: pre-notification negative
option plans; continuity plans; automatic renewals; and free-to-pay or nominal fee-to-pay
conversion plans (U.S. Federal Trade Commission, 2009). First, in prenotification plans, such as
book, wine, or music clubs, sellers send periodic notices offering goods. If consumers take no
action, sellers send the goods and charge consumers. Second, in continuity plans, consumers
agree in advance to receive periodic shipments of goods or provision of services, which they
continue to receive until they cancel the agreement. Third, in automatic renewals, a magazine
seller, for example, may automatically renew a consumer’s subscription when it expires and
charge for it, unless the consumer cancels the subscription. Finally, sellers also structure trial
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offers as free-to-pay, or nominal-fee-to-pay, conversions, such as receiving free premium cable
channels for 60 days. In these plans, consumers receive goods or services for free (or at a
nominal fee) for a trial period. After the trial period, sellers automatically begin charging a fee
(or higher fee) unless consumers affirmatively cancel or return the goods or services.
In the case of NOSM, the marketer uses defaults to encourage “virtuous” behavior, even
if the subject would not normally explicitly choose to engage in that behavior. The present study
defines NOSM as engineering people’s choices so as to channel them through the use of defaults
or opt-out marketing to make more socially desirable decisions (from the perspective of the
policymaker) without substantively limiting their choice.
ETHICS OF NEGATIVE OPTION SOCIAL MARKETING
Influencing behavior is central to social marketing. It is nothing new to governments,
which have often used tools such as legislation, regulation, or taxation to achieve desired policy
outcomes, nor to marketers which have employed numerous advertising promotions to guide
people’s behavior. But it is now being used by nations in social marketing campaigns to warn of
the dangers of obesity or the problem of domestic violence to achieve desired policy outcomes
using nudges. NOSM nudges have garnered increased attention primarily because its
techniques—often involving relatively minor and subtle changes to processes, forms, and
language—have provided policymakers a potentially potent new set of tools to influence citizen
choices and behavior so as to manage individual behavior.
The increased use of such NOSM has raised a number of ethical concerns, including the
re-conceptualization of the “state-individual relationship,” (Ménard 2010: 229), suggesting that
policymakers assume that “the masses are too stupid to make good decisions for themselves
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(Selinger and Whyte 2011: 928), or that nudges undermine the trust in patient-physician
relationships or exploit power-differences particularly in vulnerable populations (BlumenthalBarby and Burroughs, 2012). Hansen and Jespersen (2013: 5) note that social nudging “seems to
make the approach incompatible with public policymaking in a modern democracy. Indeed,
state manipulation with the choices of citizens appears to be at odds with the democratic ideals of
free exercise of choice, deliberation, and public dialogue.” Haug and Busch (2013) identify a
lack of clarity pertaining to the ethical dimensions of nudges, suggesting the need for an ethical
framework.
Likewise, these ethical concerns about NOSM appear to be consistent with a notion
voiced by former U. S. President John Kennedy in a speech to Congress, that consumers have the
right to freedom of choice. President Kennedy (1962) said that:
“Marketing is increasingly impersonal. Consumer choice is influenced by mass
advertising utilizing highly developed arts of persuasion…. Additional legislative
and administrative action is required, however, if the federal Government is to meet
its responsibility to consumers in the exercise of their rights. These rights include:
1. The right to safety…
2. The right to be informed…
3. The right to choose…
4. The right to be heard….”
This Consumer Bill of Rights as it has become known can be used to suggest ethical
issues that may arise with the implementation of NOSM techniques as a tool of social policy.
For example, would a consumer who does not want to support a specific social cause be truly
free to choose under the conditions of a social nudge’s choice architecture without incurring
either pecuniary or non-pecuniary costs over and above those faced by consumers making a more
socially desirable decision?
The ethical concerns that are associated with the use of NOSM can also be evaluated
using Hunt and Vitell’s (1986, 1993, 2006) general theory of marketing ethics. The Hunt-Vitell
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(1986, 1993, 2006) theory suggests that ethical decision making is ultimately judged at the nexus
of deontological (the behavioral means) and teleological (the outcomes or “desired end states”)
evaluations that are influenced by cultural, individual, industry, and organizational environments
coupled with the personal characteristics of the decision maker and are an antecedent to ethical
judgments. When both the means and ends of the act result in social good, that is, that no one is
made worse off (see Arrow, 1950), then the act is ethical. This theory can be used to explain the
ethical implications of NOSM. Figure 1 adapts a simplified model of the Hunt-Vitell (1986,
1993, 2006) theory to the context of NOSM as an illustration. Table 1 provides a summary of
the interrelationship between NOSM and the Consumer Bill of Rights evaluated by the Hunt and
Vitell (1986, 1993, 2006) framework.
--------------------------------------Inset FIGURE 1 about here
----------------------------------------------------------------------------Insert TABLE 1 about here
--------------------------------------NOSM violates the spirit of Kennedy’s (1962) Consumer Bill of Rights by making the
pecuniary and non-pecuniary costs of the public actively choosing higher than simply accepting
the nudge. NOSM makes some worse off. For example, when NOSM is used to support a
vaccination campaign, there is a very small number of vaccine recipients that will be harmed by
the vaccine. By increasing the time, effort, and potentially financial costs of making a choice,
NOSM forces the choice architects’ values on the consumer, potentially diminishing the safety,
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and rights of some individuals, often a small public minority, to be safe, to choose, to be
informed, and to be heard.
Likewise, when defaults have an effect because consumers are not aware that they have
choices, or because the transaction costs of changing from the default are onerous, NOSM
marketing may be ethically problematic. Schwartz (2005: 39) proposes a set of “universal moral
values” which include: (1) trustworthiness; (2) respect; (3) responsibility; (4) fairness; (5) caring;
and (6) citizenship. Similarly, the American Marketing Association’s (AMA’s) Statement of
Ethics (2014) appear to largely capture Schwartz’s domain with the following norms: (1) do no
harm; (2) foster trust in the marketing system; and (3) embrace the ethical values of honesty,
responsibility, fairness, respect, transparency, and citizenship. The implication of NOSM may
be problematic as the use of NOSM may foster distrust by the public and seems to be at odds
with the mandate to “embrace, communicate, and practice the fundamental ethical values that
will improve consumer confidence in the integrity of the marketing exchange system” (AMA,
2014).
Specifically, NOSM may violate AMA’s basic values which include: (1) honesty; (2)
responsibility; (3) fairness; (4) respect; (5) transparency; and (6) citizenship. Honesty requires
the social marketer “to be truthful and forthright in … dealings with customers and
stakeholders;” and “tell the truth in all situations and at all times.” Additionally, NOSM works
best in the dark and may be implicitly dishonest, violating any semblance of transparency.
Responsibility and respect suggest that the social marketer must both “recognize our special
commitments to vulnerable market segments such as children, seniors, the economically
impoverished, market illiterates and others who may be substantially disadvantaged…and avoid
using coercion with all stakeholders,”(AMA, 2014). On the other hand NOSM encourages those
13
with different values from the choice architects to pay a cost in time, effort, or even money if
they wish to actually exercise their choice. Fairness requires that social marketers represent their
ideas or products in a fair and clear manner with the aim to truthfully communicate the attributes,
avoiding conflicts of interest, or marketer manipulation. Social marketers under the AMA
(2014) Statement of Ethics also have the obligation to be good citizens. Table 2 provides a
summary of the interrelationship between NOSM and marketing ethics.
--------------------------------------Insert TABLE 2 about here
--------------------------------------The more specific ethical criticisms of nudging (and defaults) have included: (1) lack of
transparency; and, (2) a negative impact on poor and low income people. Nudging and defaults
work by implicitly “manipulating people’s choices” (Bovens, 2009: 19; Vallgårda, 2012: 201)
and behavior (Hansen and Jespersen, 2013), and this is inherently unethical because of its lack of
transparency. For example, Bovens (2009: 209) has questioned the ethics of nudges because
they “… typically work better in the dark. If we tell students that the order of the food in the
Cafeteria is rearranged for dietary purposes, then the intervention may be less successful.”
While the consensus appears to be that choice architecture tends to work best when
people are unaware that a nudge is influencing their behavior (Selinger and Whyte, 2010), recent
research by Loewenstein, Bryce, Hagmann, and Rajpal (2014) seems to complicate the matter.
These researchers found, in the context of end-of-life care choices, that even when individuals
are explicitly informed that a default rule is in place, and that it has been chosen because it
affects people’s decisions, there is essentially no effect on what people do which suggests that
people are not uncomfortable with defaults, even when they are made aware that choice
14
architects have selected them, and do so because of their significant effect. Clearly further
research is needed.
The second specific ethical concern is that certain vulnerable groups may be particularly
sensitive to defaults. Some research (e.g., Brown, Farrell, and Weisbenner, 2012) has found that
minorities and the poor and other less “sophisticated” participants—those with lower education
levels, who are less confident in their skills in a given context, and who have lower levels of
knowledge about specific plan parameters—are more influenced by defaults. This suggests that
certain at risk individuals are less likely to opt out of the default and are more susceptible to
defaults even when it is relatively inappropriate for them and further negatively impacts their
already modest economic wellbeing. According to Mani, Mullainathan, Shafir, and Zhao (2013)
this may happen because poverty-related concerns consume mental resources, leaving less for
other tasks—like evaluating the appropriateness of defaults. Simply put, being poor taps out
individuals’ mental reserves leaving them more vulnerable to unscrupulous social marketers
using NOSM schemes.
SUMMARY
This paper has explored NOSM and how it relates to both the AMA Statement of
Marketing Ethics and President Kennedy’s Consumer Bill of Rights using the Hunt-Vitell (1986,
1993, 2006) general theory of marketing ethics and an evaluative framework. NOSM’s power to
influence choice seems at odds with both the Consumer Bill of Rights and the AMA Statement
of Marketing Ethics, underlined by Schwartz’s (2005) statement of universal human values.
These frameworks suggest respectful, open, fair, and honest communication allowing for true
freedom of choice. It appears that the use of NOSM to achieve public policy objectives falls
short of the standards set by these frameworks when evaluated by the Hunt-Vitell (1986, 1993,
15
2006) marketing ethics protocol, thereby and answering one of Spotswood et al.’s (2012)
“uncomfortable questions”—“(S)hould social marketers use implicit (rather than explicit)
behavior change techniques?” The answer is quite clearly no.
Choice architecture—the design of the context in which decisions are made—can
“nudge” individuals towards a particular outcome. An especially powerful tool of choice
architecture is the default—which is the option that is implemented when individuals do not
actively make selections—because individuals are likely to accept the default. Therefore, the
default chooser, whether they are policymakers, employers, insurance companies, governments,
researchers, or marketers, is often able to guide people to certain decisions and choices that they
find desirable. A key point, however, is that there is no such thing as a neutral design (Thaler
and Sunstein, 2008). Since choice architecture and its effects cannot be avoided, it cannot be
inherently morally problematic. Some organization or agent must provide starting points of one
kind or another. A choice architect, whether he or she likes it or not, simply cannot avoid
influencing the decisions and behavior in the context they are responsible for organizing. Even if
a design is unthinking, its consequences are not neutral. Opt-out defaults in social marketing are
founded on the erroneous logic that “silence means consent.”
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References
Abadie, A., and Gay, S. (2006). The impact of presumed consent legislation on cadaveric organ
donation: A cross-country study. Journal of Health Economics, 25(4), 599-620.
American Marketing Association. (2014). Statement of Ethics. Retrieved from
http://www.marketingpower.com/AboutAMA/Pages/Statement%20of%20Ethics.spx
Ariely, D. (2008). Predictably irrational: The hidden forces that shape our decisions. New York:
HarperCollins.
Arrow, K. J. (1950). A difficulty in the concept of social welfare. The Journal of Political
Economy, 58(4), 328-346.
Ayres, I. (2006). Menus matter. University of Chicago Law Review, 73(3), 3-15.
Basham, P. (2010). Are Nudging and Shoving Good for Public Health? Retrieved from
http://www.democracyinstitute.org/LiteratureRetrieve.aspx?ID=69452
Bellman, S., Johnson, E., and Lohse, G. (2001). To opt-in or optout? It depends on the question.
Communications of the ACM, 44(2), 25-27.
Blumenthal-Barby, J. S., and Burroughs, H. (2012). Seeking better health care outcomes: The
ethics of using the “nudge”. The American Journal of Bioethics, 12(2), 1-10.
Bonell, C. P., McKee, M., Fletcher, A., Wilkinson, P., and Haines, A. (2011). One nudge
forward, two steps back. British Medical Journal, 342, d401.
Bovens, L. (2009). The ethics of nudge. In T. Grüne-Yanoff and S. O. Hansson, Preference
change: Approaches from philosophy, economics and psychology (Theory and Decision Library
A:) (pp. 207-220). Heidelberg: Springer Science + Business.
Brenkert, G. G. (2002). Ethical challenges of social marketing. Journal of Public Policy and
Marketing, 21(1), 14-25.
Brown, C. L. and Krishna, A. (2004). The skeptical shopper: A metacognitive account for the
effects of default options on choice. Journal of Consumer Research, 31(3), 529-539.
Brown, J. R., Farrell, A. M., and Weisbenner, S. J. (2012). The Downside of Defaults
(unpublished manuscript). Retrieved from http://www.nber.org/aging/rrc/papers/orrc12-05.pdf
Chapman, G. B., Li, M., Colby, H., and Yoon, H. (2010). Opting-in vs opting-out of influenza
vaccination. Journal of the American Medical Association, 304(1), 43-44.
Cialdini, R. B. (2006). Influence: The psychology of persuasion (revised edition). New York:
William Morrow.
17
Cornwall, D. (2014). Gently nudging citizens reaps millions for NSW Government. ABC News,
Monday June 2.
Dolan, P., Hallsworth, M., Halpern, D., King, D., Metcalfe, R., and Vlaev, I. (2012). Influencing
behaviour: The mindspace way. Journal of Economic Psychology, 33(1), 264-277.
Dorning, M. (2010). Obama Adopts Behavioral Economics. Bloomberg BusinessWeek. Retrieved
from www.businessweek.com/magazine/content/10_27/b4185019573214.htm
Fabrigar, L. R., Wegener, D. T., MacCallum, R. C., and Strahan, E. J. (1999). Evaluating the use
of exploratory factor analysis in psychological research. Psychological methods, 4(3), 272-299.
Federal Register. (2003, January 29). Telemarketing sales rule. §310.2(t). 68(19), 4670.
French, J. (2011). Why nudging is not enough. Journal of Social Marketing, 1(2), 154-162.
Hansen, P. G. and Jespersen, A. M. (2013). Nudge and the manipulation of choice: A framework
for the responsible use of the nudge approach to behavior change in public policy. European
Journal of Risk Regulation, 4(1), 3-28.
Haug, A., and Busch, J. A. (2014). Framework of Ethical Nudges in the Design of Consumer
Goods. In Proceedings of Design Research Society’s 2014 Conference, Umeå, Sweden,
16/06/14-19/06/14.
Hausman, D. M., and Welch, B. (2010). Debate: To nudge or not to nudge. Journal of Political
Philosophy, 18(1), 123-136.
Heath, C., and Heath, D. (2010). Switch: How to change things when things are hard. New
York: Broadway Books.
Hunt, S. D., and Vitell, S. J. (1986). A general theory of marketing ethics. Journal of
macromarketing, 6(1), 5-16.
Hunt, S. D., and Vitell, S. J. (1993). The general theory of marketing ethics: A retrospective and
revision. In N. C. Smith and J. A. Quelch (Eds.), Ethics in marketing (775-784). Chicago,
Richard D. Irwin.
Hunt, S. D., and Vitell, S. J. (2006). The general theory of marketing ethics: A revision and three
questions. Journal of Macromarketing, 26(2), 1-11.
Johnson, E. J., Bellman, S., & Lohse, G. L. (2002). Defaults, framing and privacy: Why opting
in-opting out. Marketing Letters, 13(1), 5-15.
Johnson, E. J. and Goldstein, D. G. (2003). Do defaults save lives? Science, 1338-1339.
18
Johnson, E. J. and Goldstein, D. G. (2004). Defaults and donation decisions. Transplantation,
78(12), 1713-1716.
Johnson, E. J., Hershey, J., Meszaros, J., and Kunreuther, H. (1993). Framing, probability
distortions, and insurance decisions. Journal of Risk and Uncertainty, 7(1), 35-51.
Kahneman, D. (2011). Thinking, fast and slow. New York: Farrar, Straus and Giroux.
Kahneman, D., and Tversky, A. (1979). Prospect theory: An analysis of decision under risk.
Econometrica, 47, 263-291.
Kennedy, J. F. (1962). Special message to the Congress on protecting the consumer interest.
Retrieved from www.presidency.ucsb.edu
Kesan, J. P., and Shah, R. C. (2006). Setting software defaults: Perspectives from law, computer
science and behavioral economics. Notre Dame Law Review, 82(2), 583-634.
Korobkin, R. (1998). Inertia and preference in contract negotiation: The psychological power of
default rules and form terms. Vanderbilt Law Review, 51, 1583-1623.
Kressel, L. M., Chapman, G. B., & Leventhal, E. (2007). The influence of default options on the
expression of end-of-life treatment preferences in advance directives. Journal of General
Internal Medicine, 22(7), 1007-1010.
Laczniak, G. R., Lusch, R. F., and Murphy, P. E. (1979). Social marketing: Its ethical
dimensions, Journal of Marketing, 43, 29-36.
Lamont, D. D. (1995). Negative option offers in consumer service contracts: A principled
reconciliation of commerce and consumer protection. UCLA Law Review, 42, 1315-1388.
Lang, T. and Gataher, M. (2009). Food policy: Integrating health, environment and society.
Oxford University Press, Oxford.
Licata, J. W., & Von Bergen, C. W. (2007). An exploratory study of negative option marketing:
Good, bad or ugly? International Journal of Bank Marketing, 25, 207-222.
Loewenstein, G., Bryce, C., Hagmann, D., and Rajpal, S. (2014). Warning: You are about to be
Nudged. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2417383
Madrian, B. and Shea, D. F. (2001). The power of suggestion: Inertia in 401(k) participation and
savings behavior. The Quarterly Journal of Economics, 116(4), 1149-1187.
Maher, B. S. (2012). Some thoughts on health care exchanges: Choice, defaults, and the
unconnected. Connecticut Law Review, 44(4), 1099-1112.
19
Mani, A., Mullainathan, S., Shafir, E., and Zhao, J. (2013). Poverty impedes cognitive function.
Science, 341(6149), 976-980.
McKenzie, C. R. M., Liersch, M. J., and Finkelstein, S. R. (2006). Recommendations implicit in
policy defaults. Psychological Science, 17(5), 414-420.
Ménard, J. F. (2010). A ‘nudge’for public health ethics: Libertarian paternalism as a framework
for ethical analysis of public health interventions? Public Health Ethics, 3(3), 229-238.
Murphy, P. E., Laczniak, G. R., and Lusch, R. F. (1978). Ethical guidelines for business and
social marketing. Journal of the Academy of Marketing Science, 6(3), 195-205.
Pichert, D., and Katsikopoulos, K. V. (2008). Green defaults: Information presentation and proenvironmental behaviour. Journal of Environmental Psychology, 28, 63-73.
Samuelson, W. and Zeckhauser, R. (1988). Status quo bias in decision making. Journal of Risk
and Uncertainty, 1, 7-59.
Schwartz, M. S. (2005). Universal moral values for corporate codes of ethics. Journal of
Business Ethics, 59(1-2), 27-44.
Selinger, E. and Whyte, K. P. (2010). Competence and trust in choice architecture. Knowledge,
Technology & Policy, 23(3-4), 461-482.
Selinger, E. and Whyte, K. P. (2011). Is there a right way to nudge? The practice and ethics of
choice architecture. Sociology Compass, 5(10), 923-935.
Shove, E. (2003). Converging conventions of comfort, cleanliness and convenience. Journal of
Consumer Policy, 26(4), 395-418.
Smith, N. C., Goldstein, D. G., and Johnson, E. J. (2009). Smart Defaults: From Hidden
Persuaders to Adaptive Helpers. INSEAD Business School Research Paper No. 2009/03/ISIC.
Available at SSRN: http://ssrn.com/abstract=1116650 or http://dx.doi.org/10.2139/ssrn.1116650
Spotswood, F., French, J., Tapp, A., and Stead, M. (2012). Some reasonable but uncomfortable
questions about social marketing. Journal of Social Marketing, 2(3), 163-175.
Sunstein, C. R. (2013). Deciding by default. University of Pennsylvania Law Review, 162(1), 157.
Thaler, R. H. and Sunstein, C. R. (2008). Nudge: Improving decisions about health, wealth, and
happiness. New Haven, CT: Yale University Press.
U. S. Federal Trade Commission. (2009). Negative Options: A Report by the Staff of the FTC’s
Division of Enforcement. Retrieved from
http://www.ftc.gov/sites/default/files/documents/reports/negative-options-federal-trade20
commission-workshop-analyzing-negative-option-marketing-reportstaff/p064202negativeoptionreport.pdf
Vallgårda, S. (2012). Nudge—A new and better way to improve health? Health Policy, 104(2),
200-203.
Wansink, B. (2006). Mindless eating: Why we eat more than we think. New York: Random
House.
Willis, L. E. (2012). When nudges fail: Slippery defaults. University of Chicago Law Review, 80,
1155-1229.
Young, S. D., Monin, B., and Owens, D. (2009). Opt-out testing for stigmatized diseases: A
social psychological approach to understanding the potential effect of recommendations for
routine HIV testing. Health Psychology, 28(6), 675-681.
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Figure 1
Adapting the Hunt-Vitell (1986, 1993, 2006) Theory of Ethics to NOSM
Deontoligical evaluation of
percived social problem (are
the means ethical?)
Antecedent Enviroment
(culture, regulatory
institutions, individual values)
EVALUATION OF THE ETHICAL
DIMENSIONS OF NOSM
Teleological evaluation of
percived consequences (are
the outcomes desirable from
a social "good" perspective?)
22
Are both the means and ends
socially "good?" - If not then
the act is not ethical
TABLE 1
KENNEDY’S (1962) CONSUMER BILL OR RIGHTS AND THE IMPLICATIONS
OF NOSM EVAULTATED BY THE HUNT-VITELL (1986, 1993, 2006) THEORY
OF MARKETING ETHICS
CONSUMER DEONTOLOGICAL IMPLICATIONS – ARE THE
RIGHT
MEANS1 OF NOSM GOOD
TO SAFETY
The Implied Endorsement by an expert means of NOSM
could reduce the probability of a consumer critically
evaluating an option.
The choice architecture design of low Effort may
discourage the consumer exploring “safer” alternatives.
TO BE
INFORMED
The notion of the nudge being the part of the Status Quo
may imply a safe choice when that is not the case for that
specific individual
The Implied Endorsement could reduce the probability of
information search.
The low Effort dimension of NOSM nudges may result in
low involvement with the issue by the public.
TO
CHOOSE
The power of maintaining the Status Quo may imply that
there is no need to become informed on an issue.
The Implied Endorsement could reduce the probability of
making an active choice.
The low Effort dimension of NOSM nudges may result in
many members of the public abdicating their right to
choose in favor of the nudge’s lower time and efforts
demands.
TO BE
HEARD
The Status Quo as the “correct choice” implies that there is
no need to choose for your-self.
The Implied Endorsement may diminish any dissent.
The low Effort dimension of NOSM nudges may encourage
the public not to speak out.
The Status Quo may in fact silence most other voices.
1: adapted from Ayres (2006)
23
TELEOLOGICAL
IMPLICATIONS –
ARE THE ENDS
GOOD
Choices made due to
NOSM could reduce
safety for some
individuals, while
enhancing the
publics’ mean level of
“social welfare.”
NOSM may constrain
consumer information
search and result in a
less educated public.
Freedom of choice is
constrained by the
marginal pecuniary
and non-pecuniary
costs of choice.
NOSM increases the
costs of “being heard”
and may reduce the
voice of the consumer
in the market place
TABLE 2
AMERICAN MARKETING ASSOCIATION’S (AMA’S) STATEMENT OF
MARKETING ETHICS (2014) AND THE IMPLICATIONS OF NOSM
EVAULTATED BY THE HUNT-VITELL (1986, 1993, 2006) THEORY
OF MARKETING ETHICS
AMA’s ETHICAL NORMS
AND VALUES
DO NO HARM
FOSTER TRUST IN THE
MARKETING SYSTEM
HONESITY
RESPONSIBILITY
FAIRNESS
RESPECT
TRANSPARENCY
CITIZENSHIP
DEONTOLOGICAL
IMPLICATIONS
If the choice is not in the one
that the consumer would
have made in the absence of
NOSM, then it could violate
this norm
NOSM diminishes the level
of behavior based on trust
The behavior of a social
marketer employing NOSM
is not honest
If the social marketer was
acting in the consumers’ best
interest then NOSM may
positively influence
responsible behavior.
NOSM guides choice to
what is in the best interest of
the “public,” but not always
what is in the best interest of
the individual.
Thaler and Sunstein’s (2008)
“libertarian paternalism”
assumes that the public does
not possess the capacity to
make informed and rational
choices.
By nature NOSM does not
result in transparent behavior
by the social marketer – as
Thaler and Sunstein (2008)
note – nudges work better in
the dark.
The implications of NOSM
in reducing choice also
diminish good citizenship.
24
TELEOLOGICAL
IMPLICATIONS
If the choice is not in
the consumers’ best
interest, then it could
violate this norm
The nature of NOSM
would constrain the
public’s trust
The nature of NOSM
would limit an honest
outcome
If the social marketer
was acting in the
consumers’ best interest
then NOSM may
positively influence a
socially desirable
outcome.
Some individuals who
accept the nudge will
make sub-optimal
choices.
NOSM diminishes the
respect that the social
marketer would hold
for the public
For NOSM to be most
effective it cannot be
transparent.
Effective democracies
require active choice.