California Governor Gavin Newsom has signed a new law that is intended to turn down the volume on some streaming television advertisements — but a critical omission in the bill makes the law effectively powerless.
Senate Bill 576 is inspired by the federal CALM Act, which prohibit broadcasters and cable networks from airing commercials that are louder than the volume of normal TV programming.
The intention of the CALM Act is to ensure a consistent volume during the entirety of a program, including commercial breaks. Before the federal law, some broadcasters raised the volume of commercial spots as a way to increase attention.
The new law in California aims to curb the same practice on streaming services like Netflix, Amazon’s Prime Video and YouTube. It prohibits all “video streaming services” that sell subscriptions or otherwise reach viewers in the state from transmitting “the audio of commercial advertisements louder than the video content of the advertisements accompany.”
The bill takes effect next July, after which streaming services — in theory — shouldn’t be allowed to distribute ads that are louder than a movie or TV show.
But the law is generally unenforceable, because lawmakers didn’t include specific penalties for streaming services. The measure is rooted in a chapter of the state’s Business and Professional Code that covers cable television programming, which was amended last year and also doesn’t outline penalties for violators.
Other parts of the Business and Professional Code that regulate things like commercial vehicles, medical practitioners and law firms do have specific penalties for violations. But the regulation concerning cable TV and streaming providers — which fall under “special business regulations,” also known as Division 8 — is not connected to any specific or blanket penalties.
What is specified in the law is that it doesn’t create a “private right of action,” meaning consumers can’t sue a video provider if a streaming service airs loud commercials anyway.
Lawmakers could amend the rule in future legislative sessions to close the enforcement loophole, even before it takes effect next July. They may do just that, as the rule has proved immensely popular with politicians and consumers alike.
“We heard Californians loud and clear, and what’s clear is that they don’t want commercials at a volume any louder than the level at which they were previously enjoying a program,” Newsom said in a statement this week.
Opponents of the rule say, even if penalties are added in the future, it might still be difficult to enforce — and may not survive a legal challenge.
Melissa Patack, the Vice President of Government Affairs at the Motion Picture Association (MPA), the entertainment industry’s main advocacy group, previously told lawmakers that the technological process by which advertisements are paired with streaming movies and TV shows makes it difficult, if not impossible, for apps and services to control the volume of commercial breaks.
“When you choose a program on your streaming service, you’re actually calling up a digital file and advertising is paired up with that in real time,” Patack said. “The streaming platform may not be able to control the loudness of a particular ad.”
That is different from how broadcast and most cable TV advertising works, where everyone sees the same ad at the same time. Streaming platforms use a technique called “dynamic ad insertion” to integrate commercial spots at various points of a movie or TV show — and consumers see different ads for different products and services, largely dependent on their viewing and online habits.
Marketers have embraced streaming ads as a way to reach specific groups of viewers at specific times — for instance, an ad spots for a sports bar that features excited patrons will more likely air when a streaming app receives data and signals that indicate a sports fan of a certain age and income level is watching.
Time-of-day ads are also common, where brands want to reach consumers in the morning or evening, depending on when they think a purchase intent or use is likely.
“(We) be watching the same program, but we may have started it at different times, and therefore we’ll probably see different ads based on the dynamic ad insertion with the digital file,” Patack noted.
The differing ways ads are run on streaming apps and services means even if California wants to regulate loud ads on TV — right now, it appears the state can’t, despite some legislative effort — it might be technically impractical to do so.
