"Grand Theft Oreo": The Constitutionality of Advergame Regulation

In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is advergames -- a combination of advertisement and video games. Unlike traditional video games, advergames are typically rudimentary, involving relatively simplistic animation and music as well as minimal plot or character development. As food companies' use of advergames has grown exponentially, various individuals and groups concerned about the role of the media in fueling the rising childhood obesity rate have called on the government to more aggressively regulate advergames and other forms of marketing. Due to the increasingly important role that advergames play in food companies' marketing practices, these companies are likely to strongly oppose any effort to regulate advergames. The analysis of advergame regulation suggests that courts should refrain from treating advergames and other advertising hybrids as highly protected noncommercial speech.