Whittier Law Review
12 (1991): 113.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
REGULATING HANDGUN ADVERTISING DIRECTED AT WOMEN
Debra Dobray *
Arthur J. Waldrop **
Copyright 1991 by the Whittier Law Review, Debra Dobray & Arthur J. Waldrop
American gun manufacturers have been experiencing an industry downturn since the early 1980's. In fact, since 1982 retail sales of guns overall has dropped thirty percent.  Only the production of pistols has increased over this time period.  This downturn has forced companies to seek ways to stimulate sales, and some of these companies have chosen to aggressively market guns to certain demographic groups such as women. 
During the last year, three of the leading gun manufacturers have introduced handguns for women.  These guns typically are characterized by a scaled-down frame and, often, a less powerful cartridge. Frequently they are designed so that they may be hidden fashionably on one's person.  Examples of these new guns include the Charter Arms Corporation's "Bonnie," a 32 magnum, and "Clyde," a 38 magnum, for "his and her" shooting. Smith & Wesson has also introduced the LadySmith, a slimmed down revolver with a shortened trigger reach, designed so that it can be easily concealed. This new emphasis on women in marketing efforts is designed to revive the sagging demand these companies have been experiencing. [Page 114]
Smith & Wesson is one company whose methods of advertising has drawn attention. Several women's magazines, including McCall's, Mademoiselle, and Better Homes and Gardens, have refused to run Smith & Wesson's new advertising, complaining that it may be offensive to readers.  These ads feature women and offer tips on how to avoid being attacked, but do not suggest that readers should use guns.  It is this type of advertising, as argued by some gun control proponents, that preys on the fears of women and frightens them into purchasing handguns.  While some advertisements use that tactic, others promote handguns as being elegant and chic.  However, it has yet to be established if there is any actual utility or benefit of having a weapon on one's person while being accosted.
In 1987, American women used firearms in 715 killings. Of those persons killed, 217 were the husbands of those women. Only 25 of the 715 incidents were considered to be justifiable homicides, that is, cases where the women used the weapons against someone attempting a felony.  One study  analyzed all the gunshot deaths that occurred in King County, Washington, from 1978 to 1983 to determine the epidemiology of deaths involving firearms kept in the home.  Of the 743 firearm-related deaths that occurred during this six-year period, 398 occurred in the residence where the firearm was kept, and only two of these 398 deaths involved an intruder who was shot during an attempted entry.  A total of seven persons out of 743 were killed in self-defense, and for every case of self-protection homicide involving a handgun kept in the home, there were 1.3 accidental deaths, 4.6 criminal homicides, and thirty-seven suicides involving firearms.  The conclusion of the authors was that the "advisability of keeping firearms in the home for protection must be questioned."  In addition to [Page 115] the above statistics, which indicate that the possession of a handgun does not ensure security, several informed people have spoken out against using guns for self-defense.  The current advertising of women's handguns gives the impression that a woman is safer with a handgun in her possession than without one. The fact that there is no statistical evidence supporting the notion that handgun possession creates a safer environment  indicates that this form of women's handgun advertising could be subject to regulation.
This article will discuss whether there are any constitutional barriers to the regulation of such advertisements and on what legal grounds the Federal Trade Commission (FTC) might be able to regulate them. It will also briefly discuss the nonregulatory problems of such advertisements with respect to product liability law.
While the first amendment protects free speech, the government can regulate commercial speech more than other types of speech. Because commercial speech is transaction based, rather than based upon the exchange of ideas, it is afforded less protection than political [Page 116] speech.  Commercial speech may be defined as "that which does no more than propose a commercial transaction."  Most advertisements, by definition, would fall within this category of speech. 
Untruthful speech, commercial or otherwise, does not enjoy constitutional protection on its own merit.  Advertisements for handguns are not per se untruthful. Yet such advertisements may be viewed as being deceptive in that they cloak women with a false feeling of security when there may be a greater probability of serious injury if a woman possesses a handgun.  Deceptive or misleading speech, like untruthful speech, is not afforded constitutional protection.  The Federal Trade Commission was created by Congress in 1914 to preserve economic freedom by prohibiting unfair methods of competition.  In 1938, Congress amended the Federal Trade Commission [Page 117] Act to include the prohibition of unfair or deceptive acts or practices.  Thus, the FTC should be able to regulate such advertisements without offending the first amendment if they are deemed to be misleading or deceptive. 
If such speech is not considered misleading or deceptive it may still be regulated as commercial speech since it is inherently afforded less protection under the first amendment. Courts use a four-part analysis in determining whether commercial expression should be constitutionally protected. For commercial speech to be protected it must first concern a lawful activity and not be misleading.  Additionally, the governmental interest in regulation must be substantial and the regulation must directly advance the governmental interest asserted. Finally, the regulation must be no more extensive than is necessary to serve the governmental interest. 
If for any reason, statutory or otherwise, the sale of a concealable weapon or a "Saturday Night Special"  is illegal,"  then the FTC should be able to regulate or prohibit the advertisement of such guns. For regulation of the advertisement of other handguns the balancing test should apply. Arguably the government has an interest in limiting the use of handguns. To combat the dangers posed to women in today's society, disarming potential criminals seems more rational than arming potential victims. Thus, the government should be able to articulate as its interest the need to restrict the sale of handguns and narrow, rather than expand, the number of people who purchase these guns. Regulating the presentation of information to a particularly vulnerable, less informed target group of purchasers does not appear to be an overly extensive means of achieving that end. Whether or not such [Page 118] regulation would be discriminatory is less clear.  But it seems that the more egregious marketing tactics which glamorize the carrying of handguns and prey on the fears of defenseless women could be restricted, even if the restriction of all sales tactics directed at women would be unconstitutional. 
In determining whether or not the FTC has the constitutional authority to regulate the form of advertising handguns to women, it may be helpful to examine one of the broadest interpretations of its statutory grant of powers, that is, its power to issue remedial orders. In Warner-Lambert Co. v. FTC  the District of Columbia Court of Appeals held that the FTC, under section 5 of its enabling act, had the authority to issue a corrective advertising order once a violation was found.  Recognizing that the advertisement in question was deceptive, the court implied that the free flow of information demanded a clean flow. It further recognized that a "cease and desist" order alone would not correct past misconceptions fostered by the misleading advertisements. The court ordered the petitioner company to affirmatively advertise in order to correct those past misconceptions.  In doing so, the court not only regulated the content of commercial speech, it forced the company to speak in a certain manner to dispel [Page 119] past consumer beliefs. No constitutional issue was raised regarding such forced speech. Although the remedial order followed a finding of deception, it appears that, given the strength of the order in Warner-Lambert, the FTC would have the power to regulate the form of the commercial message under general notions of unfairness without violating the first amendment's protection of commercial speech. 
The second amendment similarly should not preclude the regulation of handgun advertising directed at women. The second amendment to the Constitution provides that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  The determination to be made is whether the federal constitutional right to bears arms prevents both state and federal regulation of advertising for the sale of arms. 
Historically, the courts have interpreted the second amendment very narrowly.  One view is that it is only a limitation on the powers of the federal government and not on the powers of the state.  It follows then that a state statute reasonably regulating the right to bear arms should not violate the second amendment.  Moreover, according to prevailing law, the second amendment does not grant an absolute right and does not forbid the states from regulating the right to [Page 120] bear arms as long as the regulation is reasonable. Therefore, the only determination to be made is whether the right to bear arms is so closely associated with handguns that the regulation of advertising would infringe upon this right. In other words, the question is whether state regulation of handgun advertising, particularly the type being directed at women, would be considered a reasonable regulation.
Throughout history, almost all state statutes and local ordinances prohibiting the possession of dangerous or concealed weapons have been held not to violate the second amendment right to keep and bear arms.  The United States Supreme Court has stated in dicta that the second amendment right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.  State courts have held that the authority of states to regulate weapons extends from their police powers.  A federal district court in Pennsylvania has held that a statute requiring the registration and licensing of firearms is not violative of the second amendment. This court also declared that unless possession of arms bears a reasonable relationship to the preservation or efficiency of a well-regulated militia, there is no second amendment right to such individual protection. 
Because a state has the authority under its police power to prohibit the carrying or possession of weapons that can be concealed, it appears that this authority would extend to the particular type of handgun advertising in question. Due to the nature of the advertising and the fact that most of it relates to handguns which are designed to be concealed on the person, ability to regulate it would seem to be [Page 121] apparent from the law. In fact, in Biffer v. City of Chicago,  the court noted, in upholding a Chicago city ordinance, that the sale of deadly weapons may be absolutely prohibited under the police power of the state. Furthermore, such prohibition in no way conflicted with the provision of the United States Constitution that the people as a whole have a right to bear arms.  The ordinance also prohibited exhibition for sale in showcases or show windows, or displaying of signs or posters suggesting the sale of deadly weapons. This regulation of advertising deadly weapons was also declared non-violative of the second amendment.  The court further held that if the sale could be entirely prohibited, a provision prohibiting the displaying and advertising of revolvers for sale was also valid as indirectly achieving what could be done directly.  Although the circumstances are not exactly the same, the ability of the city to prohibit the sale of deadly weapons and their display suggests that a state could also regulate the advertising of women's handguns without violating the second amendment. Courts in New Jersey have upheld many statutory provisions imposing restrictions not only on the carrying, but also on the possession and sale, of designated firearms.  Advertising is an act which is designed to facilitate a sale. It is only logical that if the state can regulate certain types of sales, it can regulate the advertising used to produce those sales.  [Page 122]
REGULATION BY THE FEDERAL TRADE COMMISSION
Congress granted the Federal Trade Commission the authority, under Section 5 of the FTC Act, to regulate unfair or deceptive acts or practices in the advertising of products.  The question is whether the current advertisements by handgun manufacturers, directed at women, are unfair or deceptive acts or practices within the meaning of the Act.
To be deemed deceptive under Section 5, the FTC must find a material representation, omission or practice that is likely to mislead consumers acting reasonably under the circumstances.  This definition of deception does not require a finding of fraud or an intent to deceive.  Although the standard for judging deception has changed within the last five years,  literal truth most likely is still no defense,  provided that the reasonable consumer test is satisfied and that there [Page 123] was reliance.  The advertisements for handguns truthfully represent the performance capabilities of the product. However, deception may be found in the implication that a woman carrying a concealed weapon or possessing a handgun will be more safe and less vulnerable to attack than an unarmed woman. This is implied despite statistics which reveal that women who possess guns are more likely to be injured than those who do not.  Moreover, the FTC has suggested that when advertising is aimed at a specific audience, the Commission will judge deception by examining the effect on a reasonable member of that audience.  Since women may be less aware of the correct usage of guns and less familiar with the handling of concealed weapons, arguably the "reasonable woman" standard for deception might be less stringent than the reasonable person standard, and deception may be more easily found.
While mere elusions or implications regarding the increased safety associated with carrying a handgun may seem more suggestive then deceptive, cases show that the FTC is willing to regulate in the general public interest and act on such attenuated and misleading impressions.  Additionally, if the public is particularly susceptible to [Page 124] being misled in their purchasing decisions because of a lack of knowledge about a product's qualities, the FTC seems to be more willing to find deception. Manufacturers of treatments for baldness,  an anti-bedwetting device,  an iron supplement,  and drugs for weight control  have been found to engage in deceptive tactics. This is perhaps partly because the public has limited medical knowledge regarding the causes of such ordinary problems and is unable to adequately evaluate the curative properties of products associated with such ailments, resulting in misguided consumer behavior.  Self- protection, like medicine, is equally mysterious to the public, particularly the target group of women who traditionally have not been trained in defensive behavior. Therefore, handgun advertising aimed at women should draw special attention from the FTC. Moreover, if an enterprise attracts customers who would not be lured without misleading statements or impressions, the FTC is less hesitant to stay its powers. In Exposition Press v. FTC  a publisher advertised to would-be authors, making reference to the large amount of royalties the authors would receive following the publication of their works. Once the authors responded to the advertisement, they were sent a brochure explaining that they must pay the entire cost of publication in advance. This arrangement made the large royalties seem not to be royalties at all, but rather a return on the authors' investments. The FTC exercised its power to regulate deception in this case partly because the publisher attracted undeserved clients.  Analogously, it is somewhat doubtful that the number of women who purchased handguns would have increased so dramatically  without the lure of the advertisements directed at their vulnerability. [Page 125]
If the FTC finds that these advertisements of handguns directed at women satisfy the deception test, then it has broad powers to formulate the appropriate remedial order.  Most likely, it would issue a cease and desist order, which is clearly within its remedial powers.  Whether the Commission would require an affirmative disclosure or issue a corrective advertising order designed to correct past misconceptions is less clear. Generally, requiring an affirmative disclosure is justified where the manufacturer's representations require further explanation, or where the consequences of using the product require further warning.  Perhaps some warning in future advertisements as to the importance of proper education when handling firearms would be deemed appropriate under the circumstances. Corrective advertising, on the other hand, would be appropriate only if the false beliefs actually held by consumers are likely to continue for a substantial period of time after the cessation of the advertising which prompted such beliefs.  This remedy is rather extraordinary and most likely not dictated by the facts since deceptive beliefs of an affirmative nature are not expressly created by the advertisement, nor have any misbeliefs been held for a long period of time. 
The FTC may also regulate advertising under the unfair practices doctrine.  The 1938 Wheeler-Lea Amendment to Section 5 of the FTC Act clarified that the prohibition of "unfair practices" was not to be limited to cases involving unfair competition between competitors, but was intended to protect consumers as well.  In other words, the [Page 126] definition of unfair practices was not to be limited to per se violations of the Sherman Antitrust Act. 
The FTC considers several factors in determining whether a practice which is neither deceptive, nor in violation of the antitrust laws, is nonetheless unfair. These factors are (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, common law, or otherwise; (2) whether the practice is immoral, unethical, oppressive, or unscrupulous; and (3) whether the practice causes substantial injury to consumers or competitors. 
The unfairness analysis will take into account many basic economic facts and considerations, and will permit a broad focus in the examination of marketing practices on a case-by-case basis.  For example, in FTC v. R.F. Keppel & Bro., Inc.,  the Supreme Court upheld a cease and desist order. The order prevented a manufacturer from selling candy under a marketing scheme which tempted children to gamble even though the scheme involved no fraud or deception and could have been adopted by competing manufacturers.
Conduct which is contrary to public policy as declared by statute is considered to be an FTC violation.  In those states where the carrying of a concealed weapon is illegal, advertising for such weapons [Page 127] should be an unfair practice. Likewise, in those states where "Saturday Night Specials" are statutorily prohibited or deemed to be unreasonably dangerous under the common law,  advertising should be violative of Section 5 as well. Arguably, preying on the fears of women by promoting that they arm themselves to forestall attacks to their person could be considered "immoral, unethical, oppressive, or unscrupulous." "Substantial injury to consumers" could be defined as personal injury resulting from accidental or intentional injury inflicted by a handgun which was purchased in response to an advertisement which alludes to safety from such self protection. 
The Commission also may proscribe rules with respect to unfair or deceptive acts or practices in, or affecting, commerce.  Again, Congressional intent has been interpreted as giving the FTC the authority to protect consumers as well as competitors.  The validity of such rules are reviewed by courts through the application of the consumer injury test. To justify a finding of unfairness, the test requires that the injury be substantial, not outweighed by countervailing benefits, and one that consumers themselves could not have reasonably avoided.  For rulemaking purposes, the FTC appears to concentrate more on economic injury to consumers as a justification for its authority than on non-economic injury resulting from unfair practices.  Thus, it is unclear whether the FTC would conclude that handgun advertising directed at women is per se unfair and then promulgate a rule prohibiting all such advertisements. The FTC is more [Page 128] likely to be successful in regulating such advertisements under the deception rationale or under general notions of unfairness on a case-by-case basis.
The preceding discussion has centered on the ability of the federal government to regulate handgun advertisements directed at women. However, there may be non-regulatory issues associated with the sale and advertisements of these firearms. While a complete discussion of product liability law as applied to manufacturers of handguns is beyond the scope of this article  this section will briefly outline some potential areas for civil litigation.
In Kelly v. R.G. Industries,  a Maryland court of appeals held that the manufacturing and marketing of handguns is not an "abnormally dangerous" activity under Section 520 of the Restatement (Second) of Torts, and that handguns are not "abnormally defective products" under Section 402A.  However, in emphasizing the common law's flexibility to fit society's needs, the court held that the manufacturers and marketers of "Saturday Night Specials" may be strictly liable.  The court further stated that not all handgun use was inconsistent with state and federal public policy, but that Saturday Night Specials had "little legitimate use in today's society."  A Saturday [Page 129] Night Special has been described as an inexpensive, cheaply constructed, short-barreled, lightweight, easily concealable, low caliber handgun.  However, many small handguns are well made and serve legitimate purposes such as law enforcement, sportsmanship, collecting, or self-protection.  In delineating the difference between a legitimate handgun and a "Saturday Night Special," the judge in Kelly stated that
the manufacturer or marketer of a Saturday night special knows or ought to know that the chief use of the product is for criminal activity. Such criminal use, and the virtual absence of legitimate uses of the product, are clearly foreseeable by the manufacturers and sellers of Saturday night specials. 
Since the type of handgun advertising that is being aimed at women today is based primarily on ease of concealability,  it is possible that the manufacturers and marketers of these handguns could be held strictly liable like those of the Saturday Night Special. Most of these handguns are designed to be hidden fashionably on the person  and are therefore generally lightweight and shortbarrelled. Although these weapons do serve a self-defense purpose, the manner by which they are distributed may constitute a defect.  The statistical bombardment in advertising of the likelihood that women will be hurt while out alone may constitute a defect in distribution. Since the actual utility and benefit of having a concealed weapon on one's person while being accosted has yet to be established, the advertisements [Page 130] may also constitute a misrepresentation which would make the product defective under Section 402B Restatement (Second) of Torts.  It is doubtful, however, that these advertisements would constitute an express warranty of safety under the provisions of the Uniform Commercial Code. 
Most likely, the guns advertised directly toward women would not be considered "Saturday Night Specials," nor would their sale necessarily be considered illegal. Therefore, the stronger case in support of regulation would not apply. However, if the advertisements can be construed as imparting a false sense of security to this targeted group, then regulation by the FTC under notions of deception or unfairness should be appropriate. Neither the first nor second amendments to the Constitution should preclude such regulation if, in fact, the initial finding by the FTC could be substantiated. Although a finding of either deception or an unfair practice appears to be a borderline example, because the subject matter involves a product which could pose substantial risk of harm to the public, arguably a less overt affirmation by the manufacturer would satisfy the requisite criteria. Again, it is unlikely that these particular handguns would be considered "Saturday Night Specials;" thus, the new developments in the law with respect to strict liability should not apply. However, even though the advertisements logically should escape scrutiny under the Restatement (Second) of Torts and the warranty provisions of the UCC, it is certainly foreseeable that litigation could ensue. Lawsuits may be anticipated to be filed by women who injure themselves or others because they were not warned regarding proper usage, or the need for training, with respect to handguns designed especially for them.
* Assistant Professor of Law and Taxation, Southern Methodist University.
** J.D., University of Mississippi; M.B.A., Southern Methodist University.
. Cytrynbaum, Reeling From a Wave of Anti-Gun Sentiment, New York Times, April 2, 1989, Sec. F, at 17 [hereinafter cited as Reeling].
. Cytrynbaum, Hard Times: Gun Makers Retrench and Toughen Their Tactics, New York Times, April 2, 1989, Sec. F, at 17 [hereinafter cited as Hard Times].
. Reeling, supra note 1, at 1.
. Hard Times, supra note 2, at 17.
. For example, one Smith and Wesson ad states, "Things that go bump in the night aren't always your imagination," and displays a picture of a woman startled in her bed. "Are you letting yourself in for an unpleasant surprise?" reads another, showing a woman coming home to a broken window.
. A brochure for Smith and Wesson expresses the elegance and compactness of the "LadySmith" in writing, alongside a picture of the handgun and its carrying case. Another promotion brochure depicts a fur coat, a yellow rose, and a "LadySmith."
. Quigley, Women and Crime: Is This the Answer?, GLAMOUR, April 1989, at 345.
. Kellerman & Reay, Protection or Peril? An Analysis of Firearm- Related Deaths in the Home, 314 NEW ENG. J. OF MED. 1557 (1986).
. Id. King County, Washington has a population of 1,270,000.
. Id. at 1560.
. Dennis Smith, Director of Public Education, Center to Prevent Handgun Violence, stated:
[D]uring most attacks, at home or on the street, you have less than a second to find your gun, identify your target and shoot. And you'd better be able to do that, no matter how scared you may be, because the presence of that weapon escalates the probability that your attacker will get violent. For every intruder killed by a handgun in the home, forty-three friends of family members die in gun related suicides, homicides or accidents.
Gwen Holden, Executive Vice President of the National Criminal Justice Association, asserted that "for the average citizen, being armed is dangerous. I especially worry that having a gun may give a false sense of security. You know you shouldn't go down to the office garage at midnight without the security guard, but if you had a gun . . .?"
Dewey Stokes of the Fraternal Order of Police, an organization of law enforcement officers, believes that one is:
[M]uch better off taking courses in self-defense than learning to shoot a firearm. The best defense against an attack is a swift kick in the assailant's groin or, if you're properly trained, a hard stomp on his instep. Part of self-defense training is learning to avoid dangerous situations in the first place, and reacting calmly if you can't.
Neil J. Behan, Chief of Police of Baltimore County, Maryland, and President of the Police Executive Research Forum, a national organization of police chiefs, holds that "if guns were the answer to the threat of crime, we'd be selling them at police headquarters." Quigley, supra note 10, at 345.
. One study interviewed inmates in prison and asked them what crime prevention methods could be employed by persons living in a house or an apartment in a neighborhood with a significant amount of property crime. Their responses indicated that keeping dogs and installing an alarm system would be more effective in deterring crime than possessing a firearm in the home. H. FIGGIE, THE BUSINESS OF CRIME: THE CRIMINAL PERSPECTIVE, Part VI of THE FIGGIE REPORT, at 31 (1988) (available from 1000 Virginia Center Pkwy., Richmond, VA).
. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). See also Patterson Drug Co. v. Kingery, 305 F.Supp. 821, 825 (W.D. Va. 1969) (regulation of commercial advertising does not intrude upon first amendment rights of free speech); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (D.C. Cir. 1971) (commercial speech afforded less protection under first amendment); Roth v. U.S., 354 U.S. 476 (1957) (no evidence founding fathers intended to protect commercial speech through Bill of Rights). For a discussion of the first amendment and the regulation of commercial speech see Note, Commercial Speech - An End in Sight to Christensen?, 23 DEPAUL L. REV. 1258 (1974); Comment, Freedom of Expression in a Commercial Context, 78 HARV. L. REV. 1191 (1965).
. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 385 (1973). It has been further defined as being a proposition directed toward the exchange of services rather than ideas. Bigelow v. Virginia, 421 U.S. 809 (1975). However, commercial speech is not always easy to define. See Bogler v. Youngs Drug Products Corp., 463 U.S. 60 (1983) (information pamphlet on prophylactics).
. Because the right to possess firearms may implicate second amendment rights, advertisements for handguns may be deemed to be more than commercial speech. However, given the conservative interpretation of that amendment by courts, this possibility is somewhat dubious. See infra notes 37-51 and accompanying text.
. New York Times v. Sullivan, 376 U.S. 254 (1964). See also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Konigsberg v. State Bar of California, 366 U.S. 36 (1961); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Court has always rejected an absolutist approach, recognizing that some speech should be afforded no protection. See e.g., Whitney v. California, 274 U.S. 357 (1927); Kovacs v. Cooper, 336 U.S. 77 (1949); Saia v. New York, 334 U.S. 558 (1948); Schenck v. U.S., 249 U.S. 47 (1918); Cox v. New Hampshire, 312 U.S. 569 (1941).
. See supra notes 10-17 and accompanying text.
. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (dicta); Central Hudson Gas and Electric Corp. v. Public Service Comm., 447 U.S. 557 (1980). See also Donaldson v. Read Magazine, Inc., 333 U.S. 178, 189-90 (1948); Pittsburgh Press v. Pittsburgh Comm. on Human Relations, 413 U.S. 376 (1973).
. For a discussion of the Act, see generally Montague, Unfair Methods of Competition, 25 YALE L.J. 20 (1915); Averitt, The Meaning of "Unfair Acts or Practices" in Section 5 of the Federal Trade Commission Act, 70 GEO. L.J. 225 (1981). See also infra notes 52-86 and accompanying text.
. FTC Act § 5, 38 Stat. 719 (1914), amended by 52 Stat. 111 (1938) (codified as amended at 15 U.S.C. § 45 (1982)).
. Most traditional consumer protection legislation is based on the contractual nature of the speech. Misrepresentation, duress, overreaching, and unconscionability are well-known defenses to contracts. When the state attacks these problems with modern regulatory torts, it can legitimately claim an interest quite distinct from the suppression of free expression. See Farber, Commercial Speech and First Amendment Theory, 74 NW. U.L. REV. 372 (1979). The Commission has the authority by law to determine what is unfair or deceptive in competition or commerce. F.T.C. v. Colgate Palmolive Co., 380 U.S. 374 (1965); Doherty, Clifford, Steers & Shenfield Inc. v. F.T.C., 392 F.2d 921 (6th Cir. 1968); J.B. Williams Co. v. F.T.C., 381 F.2d 884 (6th Cir. 1967). Furthermore, if the advertising at issue is deemed to be deceptive, the FTC is the expert body empowered to fashion an appropriate remedy. See infra note 34 and notes 52-86 and accompanying text.
. See supra notes 18-26 and accompanying text.
. Central Hudson Gas and Electric Corp. v. Public Service Comm., 447 U.S. 557 (1980).
. See infra note 91 and accompanying text.
. See infra notes 45-49 and accompanying text.
. In Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the Court emphasized that the first amendment right of free speech implied a reciprocal right on the part of consumers to receive information. Thus, restricting the flow of truthful, non- misleading information regarding a product to a specific group could violate the first amendment.
. Restricting such information to a distinct class by the FTC could also violate the fifth amendment due process clause. See also Bates v. State Bar of Arizona, 433 U.S. 350 (1976) (advertising of attorneys' fees and services).
. 562 F.2d 749 (D.C. Cir. 1977), cert. denied, 435 U.S. 950 (1978).
. In upholding the broad interpretation given to its statutory power, the court recognized that the FTC was the expert body to determine the proper scope of a remedial order and the appropriate remedy for deceptive practices. See, e.g., FTC v. Mandel, 359 U.S. 385 (1959); Continental Wax Corp. v. FTC, 330 F.2d 475 (2d Cir. 1964); FTC v. Ruberoid Co., 343 U.S. 470 (1952); Ward Laboratories v. FTC, 276 F.2d 952 (2d Cir. 1960); Wybrandt System Products v. FTC, 571 F.2d 954 (2d Cir. 1960); Fedders Corp. v. FTC, 529 F.2d 1398 (2d Cir. 1970), cert. den., 429 U.S. 818 (1976); American Home Products v. FTC, 695 F.2d 681 (3d Cir. 1982).
. Warner-Lambert Co. v. FTC, 562 F.2d 749, 756 (D.C. Cir. 1977). Prior to the issuance of the order, corrective advertising had been required but only as the result of a consent decree. For prior precedents recognizing the FTC's power to order affirmative disclosures as opposed to corrective advertising see NLRB v. Express Publishing Co., 312 U.S. 426 (1941); Royal Baking Powder Co. v. FTC, 218 F.2d 744 (5th Cir. 1922); Heater v. FTC, 503 F.2d 321 (9th Cir. 1974); Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18 (5th Cir. 1960); Ward Laboratories, Inc. v. FTC, (7th Cir. 1963); Feil v. FTC, 285 F.2d 879 (9th Cir. 1960); Waltham Watch Co. v. FTC, 318 F.2d 28 (7th Cir. 1963), cert. denied, 364 U.S. 827 (1960); J.B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967); Alberty v. FTC, 182 F.2d 36 (D.C. Cir. 1950); Wybrandt System Products v. FTC, 266 F.2d 571 (2d Cir. 1960).
. See infra notes 74-82 and accompanying text. To date, the author has found no state statutes regulating the advertising of handguns directed at women. However, this same constitutional analysis should apply.
. U.S. CONST. amend. II.
. See generally Levin, The Right to Bear Arms: The Development of the American Experience, 48 CHI. KENT L. REV. 148 (1971). This commentator argued that the second amendment to the Constitution, the right to keep and bear arms, is becoming anachronistic since it has been so narrowly construed by the courts, and since statutes and ordinances regulating firearms have been upheld against a second amendment challenge in almost every case.
. Generally, state courts have taken one of three positions in upholding legislation against second amendment claims: (1) the amendment applies to the federal government, but not to the states; (2) the right is not absolute, and therefore subject to regulation; or (3) the amendment guarantees a collective right rather than an individual right. Pierce, Second Amendment Survey, 10 N. KY. L. REV. 155 (1982).
. The Court in United States v. Cruikshank, 92 U.S. 542 (1876), stated that the second amendment means no more than that the right to bear arms shall not be infringed by Congress, and that it has no other effect than to restrict the power of the national government. Id. at 542.
. In stating this principle, the New Hampshire Supreme Court in State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976), added that the second amendment is not a grant of right, but a limitation only upon the power of Congress and the national government to infringe upon the right to bear arms. The New Jersey Supreme Court in Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968), appeal dismissed, 394 U.S. 812 (1969), also noted that it would not extend the second amendment to the states as it had done with some other amendments in the Bill of Rights. It stated that enough had been said to differentiate the second amendment from those amendments which protect individual rights and which have been read into the due process clause of the fourteenth amendment. U.S. CONST. amend XIV, § 1. In addition, the court added that the matter did not have to be pursued since a regulation which does not impair the maintenance of a state's active, organized militia is not in violation of either the terms or the purposes of the second amendment.
. See, e.g., Robertson v. Baldwin, 165 U.S. 275 (1897) where the Court stated in dictum that the right of the people to bear arms under the second amendment is not infringed by laws prohibiting the carrying of concealed weapons. And see generally 79 AM. JUR. 2d Weapons and Firearms § 8 (1975).
. See Williams v. United States, 237 A.2d 539 (D.C. 1968), where the court took note of dictum in the Supreme Court case Robertson v. Baldwin, 165 U.S. 275 (1897). In Williams, the defendant contended that a District of Columbia statute prohibiting the carrying of a pistol without a license violated his right to bear arms under the second amendment. While the court failed to decide the constitutional question since the issue was raised for the first time on appeal, the court noted the dictum in Robertson which stated that the right of people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons. See also Miller v. Texas, 153 U.S. 535 (1894) (state statute prohibiting the carrying of weapons in public).
. See Harris v. State, 83 Nev. 404, 432 P.2d 929 (1967) (the right to bear arms does not apply to private citizens as an individual right). See also Galvan v. Superior Court, 70 Cal. 2d 851, 452 P.2d 930, 76 Cal. Rptr. 642 (1969) (regulation of firearms is a proper police function).
. Eckert v. Pennsylvania, 331 F.Supp. 1361 (E.D. Pa. 1971), aff'd. 474 F.2d 1339 (3d Cir. 1973), cert. denied, 411 U.S. 920 (1973).
. 278 Ill. 562, 116 N.E. 182 (1917).
. The Biffer court made this statement in holding that a Chicago ordinance making it unlawful for any person, firm or corporation to engage in the business of selling, or to sell or give away to any person within the city, any pistol, revolver, or other weapon which could be concealed on the person without securing a license, did not violate the second amendment. However, in determining this ordinance to be reasonable, it is evident that the court gave weight to the size of the city and its dense aggregation of people. It found that special provisions are necessary for the health, safety, convenience, and good government of populous communities crowded within a narrow space. It also stated that the size and concentration of the population may give rise to peculiar conditions which are not common to rural populations and the state at large. Id. at 183.
. Id. at 185.
. See, e.g., Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968), appeal dismissed, 394 U.S. 812 (1969). The court held that a regulation which does not impair the maintenance of a state's active, organized militia does not violate either the terms or the purposes of the second amendment.
. On the other hand, if the second amendment is narrowly construed as not applying to the states, the FTC could encounter Constitutional difficulties in regulating these advertisements. However, this construction is doubtful. See, e.g., National Firearms Act, ch. 757, 48 Stat. 1236-40 (1934) (codified at 26 U.S.C. § 5801 (1982)).
. 15 U.S.C. § 45 (1982).
. In Re Cliffdale Assocs., Inc., 46 Antitrust & Trade Reg. Rep. (BNA) 703 (1984); Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431 (9th Cir. 1986). See also, Scherb, Trade Regulation - The FTC Policy Statement on Deception: A New Standard, or a Restatement of the Old?, 10 J. CORP. L. 805 (1985); Welti, The Need for a Statutory Definition of "Deceptive" Advertising, 19 NEW ENG. L. REV. 127 (1983).
. See, e.g., FTC v. Algoma Lumber Co., 291 U.S. 67 (1934); Jacob Siegel Co. v. FTC, 327 U.S. (1946); Reilly v. Pinkers, 338 U.S. 269 (1949); Rayex Corp. v. FTC, 317 F.2d 290 (2d Cir. 1963); Regina Corp. v. FTC, 322 F.2d 765 (3d Cir. 1963); FTC v. Sterling Drug, Inc., 317 F.2d 669 (2d Cir. 1963); Beneficial Corp. v. FTC, 542 F.2d 611 (3d Cir. 1976); Charles of the Ritz Distribs. Corp., v. FTC, 143 F.2d 676 (2d Cir. 1944). See also Note, Developments in the Law: Deceptive Advertising, 80 HARV. L. REV. 1005 (1967).
. Prior to 1984 the standard for determining deception was whether or not advertisements had a capacity or tendency to mislead or deceive consumers. See, e.g., Perloff v. FTC, 150 F.2d 757 (3d Cir. 1945); Niresk Indus., Inc. v. FTC, 278 F.2d 337 (7th Cir. 1960); Regina Corp. v. FTC, 322 F.2d 765 (3d Cir. 1963) FTC v. Sterling Drug, Inc.; 317 F.2d 669 (2d Cir. 1963) Trans World Accounts, Inc. v. FTC, 594 F.2d 212 (9th Cir. 1979); Gulf Oil Corp. v. FTC, 150 F.2d 106 (5th Cir. 1945); Goodman v. FTC, 244 F.2d 584 (9th Cir. 1957). See generally Jacobs, Consumer Litigation and Its Relationship to the Federal Trade Commission's "Unfairness" and "Deception" Standards, 16 U. TOL. L. REV. 903, 909-13, (1985). The newer standard requires a higher degree of deception in order to find a violation. It applies the reasonable consumer test and requires a material misrepresentation, omission or practice.
. For example, a company advertised that its cranberry juice had more "food energy" than other types of juices. Since "food energy" is a euphemism for calories, the claim was literally true, yet was deemed to be a misleading suggestion. A consent order was reached in this case which provided for an affirmative disclosure in future advertisements to clarify the prior statement. Ocean Spray Cranberries, Inc. [1970-1973 Transfer Binder] Trade Reg. Rept. (CCH) 19,981 (1972). See also, Niresk Industries, Inc. v. FTC, 278 F.2d 337 (7th Cir. 1960), cert. denied, 364 U.S. 883 (1960); FTC v. Sterling Drug, Inc., 317 F.2d 669 (2d Cir. 1963); J.B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967); Brockenstatte v. FTC, 134 F.2d 369 (10th Cir. 1943); Sebrone Co. v. FTC, 135 F.2d 676 (7th Cir. 1943); P. Lorriland Co. v. FTC, 186 F.2d 52 (4th Cir. 1950); Koch v. FTC, 206 F.2d 311 (6th Cir. 1953); Country Tweeds, Inc. v. FTC, 326 F.2d 144 (2d cir. 1964); L.G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971). FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965). Moreover, satisfied customers also apparently do not constitute a defense. Basic Books, Inc. v. FTC, 276 F.2d 718 (7th Cir. 1960); Erickson v. FTC, 272 F.2d 318 (7th Cir. 1959), cert. denied, 362 U.S. 940 (1960).
. Courts are to give the FTC's judgment regarding deception great weight upon review, although the final determination must be made through judicial construction. FTC v. Colgate Palmolive Co., 380 U.S. 374 (1965). See also, Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977), cert. denied, 435 U.S. 950 (1978) (substantial evidence review of commission's findings regarding product's attributes).
. See supra notes 10-17 and accompanying text.
. Regulation is appropriate if a deceptive message is conveyed to a substantial portion of the public. In this case it is women. See generally Preston & Richards, Consumer Miscomprehension as a Challenge to FTC Prosecutions of Deceptive Advertising, 19 J. MARSHALL L. REV. 605 (1986); Craswell, Interpreting Deceptive Advertising, 65 B.U.L. REV. 658 (1985). For a discussion of the proof needed to establish deception, see Preston, Extrinsic Evidence in Federal Trade Commission Deceptiveness Cases, 1987 COLUM. BUS. L. REV. 633 (1987); Millstein, The Federal Trade Commission and False Advertising, 64 COLUM. L. REV. 439 (1964); Gellhorn, Proof of Consumer Deception Before the Federal Trade Commission, 17 U. KAN. L. REV. 559 (1969); Preston, Description and Analysis of FTC Order Provisions Resulting From References in Advertising to Tests or Surveys, 14 PEPPERDINE L. REV. 229 (1987); Bonamici, The Use and Reliability of Survey Evidence in Deceptive Advertising Cases, 62 OR. L. REV. 561 (1983); Barnes, The Significance of Quantitative Evidence in Federal Trade Commission Deceptive Advertising Cases, 46 LAW & CONTEMP. PROBS. 25 (1983); Preston, Data-Free at the FTC? How the Federal Trade Commission Decides Whether Extrinsic Evidence of Deceptiveness is Required, 24 AM. BUS. L.J. 359 (1986).
. Moreover, innocence of motive is not a defense if an advertisement is prejudicial to the public interest. Warner Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977). See also Grady & Feinman, Advertising and the FTC: How Much Can You Puff Until You're Legally Out of Breath, 36 ADMIN. L. REV. 399 (1984).
. Keele Hair & Scalp Specialists, Inc. v. FTC, 275 F.2d 18 (5th Cir. 1960) (no effect on "male pattern baldness" which occurs in 90 to 95 percent of the cases of baldness).
. Feil v. FTC, 285 F.2d 879 (9th Cir. 1960) (device not helpful in cases of bedwetting caused by organic defects or diseases).
. J.B. Williams Co. v. FTC, 381 F.2d 884 (6th Cir. 1967) (representing common symptoms as reliable indications of iron deficiency).
. Simeon Management Corp. v. FTC, 579 F.2d 1137 (9th Cir. 1978). However, the above mentioned cases involved the application of a looser standard of deception. See supra note 55 and accompanying text.
. See also Sterling Drug, Inc. v. FTC, 741 F.2d 1146 (9th Cir. 1984), cert. denied, 470 U.S. 1084 (1985) (potential health hazards may justify more sweeping order by FTC).
. 295 F.2d 869 (2d Cir. 1961).
. With respect to this factor, the FTC was concerned with potential injury to competitors. The Commission also noted that unfair means of competition by competitors would not excuse the defendant publisher's unfair deception. Id. at 873.
. See supra notes 2-9 and accompanying text.
. See cases cited supra note 34.
. 15 U.S.C. § 45 (1982). See also Lee v. FTC, 679 F.2d 905 (D.C. Cir. 1980); Beltone Electronics Corp. v. FTC, 402 F.Supp. 590 (N.D. Ill. 1975); Sears, Roebuck & Co. v. FTC, 676 F.2d 385 (9th Cir. 1982); U.S. v. Reader's Digest Ass'n, Inc., 464 F.Supp. 1037 (Del. 1978) (consent order).
. Alberty v. FTC, 182 F.2d 36 (D.C. Cir. 1950). See also cases cited supra note 35.
. See Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir. 1977); Bristol-Myers Co., 102 FTC 21 (1983), aff'd, 738 F.2d 554 (2d Cir. 1984).
. See National Comm'n on Egg Nutrition v. FTC, 570 F.2d 157 (7th Cir. 1977), cert. denied, 439 U.S. 821 (1978).
. For a thorough discussion of the FTC's unfairness doctrine, see Craswell, The Identification of Unfair Acts and Practices by the Federal Trade Commission, 1981 WIS. L. REV. 107 (1981). See also Jacobs, supra note 55, at 904-09 (discussion of the FTC's Unfairness Policy Statement).
. FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972). Prior to the amendment, the Act was construed as being limited to unfair methods of competition as between business firms. See also FTC v. Raladam, 283 U.S. 643 (1931). For cases discussing the regulation of anticompetitive practices among businesses in the marketplace, see, e.g., E.I. DuPont de Nemours & Co. v. FTC, 729 F.2d 128 (2d Cir. 1984); Atlantic Refining Co. v. FTC, 381 U.S. 357 (1965); FTC v. Brown Shoe Co., 384 U.S. 316 (1966); FTC v. Sperry & Hutchinson, 405 U.S. 233 (1972); FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986); National Silver Co. v. FTC, 88 F.2d 425 (2d Cir. 1937). See generally LaCroix, Miklius, & Mak, The New Standards of Unfair Competition: An Economic Analysis of the Du Pont v. FTC Litigation, 9 U. HAW. L. REV. 457 (1987); Gellhorn, Trading Stamps, S & H, and the FTC's Unfairness Doctrine, 1983 DUKE L.J. 903 (1983); Peterman, The Federal Trade Commission v. Brown Shoe Company, 18 J.L. & ECON. 361 (1975); Averitt, supra note 24.
. See, e.g., Speigel, Inc. v. FTC, 540 F.2d 287 (7th Cir. 1976) (venue requirement for bringing suit against mail order company); Trans World Accounts, Inc. v. FTC, 594 F.2d 212 (9th Cir. 1979) (practices used in collection of debts); Boise Cascade Corp. v. FTC, 637 F.2d 573 (9th Cir. 1980) (industry-wide adoption of artificial method of price quoting); Grolier, Inc. v. FTC, 699 F.2d 983 (9th Cir. 1983) (practices of door-to- door salespeople of encyclopedia company).
. Pfizer, Inc., 81 F.T.C. 23, 61 (1972); FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 240 (1972). The meaning of "unfair" under the FTC Act is not limited, however, to practices forbidden at common law or by criminal statute. Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974).
. Pfizer, Inc., 81 F.T.C. 23 (1972); FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965); La Peyre v. FTC, 366 F.2d 117 (5th Cir. 1966). See also Pan American World Airways, Inc. v. U.S., 371 U.S. 296 (1963) (unfair competition).
. 291 U.S. 304 (1934).
. Atlantic Refining Co. v. FTC, 381 U.S. 357, 358, 369-71 (1965), reh'g. denied, 382 U.S. 873 (1965).
. See infra notes 87-98 and accompanying text.
. Health or safety risks seem to merit close consideration even if the actual number of incidents is small. See, e.g., In re Phillip Morris, Inc., 82 F.T.C. 16 (1973) (distributing free sample razor blades); In re International Harvester Co., 3 Trade Reg. Rep. (CCH) 22,217 (Dec. 21, 1984) (failure to disclose information about a safety risk in the fuel systems of gasoline powered tractors); In re Stupell Enterprises, Inc., 67 F.T.C. 173 (1965) (eye injuries from toy). See also In re Firestone Tire & Rubber Co., 81 F.T.C. 398, enforced, 481 F.2d 246 (6th Cir. 1973), cert. denied, 414 U.S. 1112 (1973) (advertisement of Firestone as the "safe" tire without evidence to support it being safer than other tires).
. 15 U.S.C. § 45 (a)(1), (2) (1982). Since the FTC is a creation of Congress, the extent of its rulemaking authority under the unfairness doctrine must be viewed by considering the powers Congress specifically granted. National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir. 1973), cert. denied, 415 U.S. 951 (1974).
. See supra note 75 and accompanying text. See also American Financial Services Ass'n v. FTC, 767 F.2d 957, 966 (D.C. Cir. 1985).
. American Financial Services Ass'n v. FTC, 767 F.2d 957, 970 (D.C. Cir. 1985) (credit practices rule was not an abuse of FTC's discretionary power).
. For rulemaking purposes, the FTC distinguishes between its deception rationale and its unfairness rationale. A practice is deceptive when a consumer is forced to bear a larger risk than expected, whereas a practice is unfair when a consumer is forced to bear a larger risk than an efficient market would require. Id. at 979. Both inquiries, however, focus on economic harm.
. For a more complete discussion of the tort liability of manufacturers of handguns see Turley, Manufacturers' and Suppliers' Liability to Handgun Victims, 10 N. KY. L. REV. 41 (1982); Note, Manufacturers' Liability to the Victims of Handgun Crime: A Common-Law Approach, 51 FORDHAM L. REV. 771 (1983); Mackarevich, Manufacturers' Strict Liability for Injuries From a Well-Made Handgun, 24 WM. & MARY L. REV. 467 (1983); Richard, Strict Products Liability: Application to Gun Dealers Who Sell to Incompetent Purchasers, 26 ARIZ. L. REV. 889 (1984); Safarian, A Shot at Stricter Controls: Strict Liability for Gun Manufacturers, 15 PAC. L.J. 171 (1983); Roberts, Anatomy of a Defect: Exploring the Outer Limits of a Manufacturer's Liability for Criminally Tampered Products, 14 PAC. L.J. 1173 (1983); Note, Handguns and Products Liability, 97 HARV. L. REV. 1912 (1984); Dillon, Hitting the Mark: Strict Liability for Defective Handgun Design, 24 SANTA CLARA L. REV. 743 (1984); Dimos, "Saturday Night Special" Manufacturers and Marketers Strictly Liable for Misuse of Their Products, 32 J. URB. & CONTEMP. L. 347 (1987); Goldfarb, Products Liability and the Small Concealable Handgun: A Shot at a New Solution, 9 J. PROD. LIAB. 301 (1985).
. 304 Md. 124, 497 A.2d 1143 (1985).
. Id. In this case, a man who was shot in the chest with a handgun during the armed robbery of his employer sued both the manufacturer and assembler-marketer of the handgun on strict liability grounds. The court determined that neither of these theories applied. See also Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985) (marketing of handguns not an ultrahazardous activity).
. Kelly v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143, 1152 (1985).
. See Lambert, Products Liability: Handguns, 28 ATLA L. REP. 387 (1985). In defining "inexpensive," it was determined that those handguns that commonly sell for as low as $10-$20 fall into this category.
. Id. at 388.
. Kelly v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143, 1159 (1985). For an analysis of the case see Note, Tort Law: Handgun Manufacturer Liability, 9 HARV. J.L. & PUB. POL'Y 764 (1986).
. Arguably, however, the guns are designed to be compact so as to fit comfortably in a woman's small-sized hand, rather than solely for the ease of concealment.
. One Texas company, Feminine Protection By Sarah, makes eleven styles of women's purses with concealed compartments for handguns such as the LadySmith.
. See Moning v. Alfano, 400 Mich. 425, 254 N.W.2d 759 (1977). In this case the Supreme Court of Michigan held that if a jury finds that the risk of selling slingshots directly to young children, indulging their instinct for impulse buying, outweighs the utility of letting them have the slingshots, then the manufacturer can be held liable for the injury caused by the slingshots. The manner in which the slingshots are distributed constitutes an actionable defect. If the analogy can be made between indulging young children's impulse for buying and playing on the fears of women, then it would seem that the manner of distributing women's handguns constitutes an actionable defect.
. For case law regarding the application of Section 402B see, e.g., Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980); Adkins v. Ford Motor Co., 446 F.2d 1105 (6th Cir. 1971); Chicago v. General Motors Corp., 467 F.2d 1262 (7th Cir. 1972); Westric Battery Co. v. Standard Electric Co., 482 F.2d 1307 (10th Cir. 1973).
. U.C.C. § 2-313 (1977). Most likely the advertisements would not be viewed as containing an affirmation of fact or promise which forms a basis of the bargain. The question of whether the handguns themselves are "merchantable" under the code's implied warranty of merchantability should be evaluated somewhat analogously to the strict liability concept of the common law as applied to products. U.C.C. § 2-314 (1977).