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How Sexy Can Your Ads Be?

"x-rated graffiti on a grungy wall( no filters used,texture overlayed for grungy looking)"
By George Khoury, Esq. | Last updated on

Business owners know the old advertising adage "sex sells," but are often hesitant to use sex appeal in their own advertising. Well, maybe not magazine advertisers.

However, a recent lawsuit filed by a sex toy company against New York’s MTA over the agency's decision to reject the company's ads raises a good question for business owners and advertisers: How sexy can ads be before they won't get approved, or break a law, or result in consumer backlash?

Government Approval

If you're trying to advertise on buses or trains, in another government regulated industry, or with a government agency, there may very well be strict restrictions on the types of content you may display, and you will likely need to get approval.

In the case of the sex toy company versus the NY MTA, the ads seemed rather tasteful, a little funny, and not that provocative. Nevertheless, the MTA cited its ban on advertising sex toys in its rejection. The company's lawsuit explains that many other companies have used much sexier ads and been approved, and that the MTA's rejection is motivated by sexism.

Legally Speaking, or Showing

Under the law, advertising has quite a bit of leeway, so long as it is not out in public. Public ads, such as TV, billboards, and benches, must adhere to local and state obscenity laws, which may even prohibit the display of suggestive conduct or words. So, if you're planning to publicly display something racy, you might want to get a local lawyer’s opinion first to make sure you don't wind up paying for an ad buy that goes nowhere.

Consumer Backlash

While sex certainly does still sell (just ask the coffee addicts in the Northwest), when it is done in poor taste or belies the current social mores of acceptable sexual conduct, the consumer backlash might not be worth the risk of running that "sexy" ad.

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