October 25, 2021

Volume XI, Number 298


October 22, 2021

Subscribe to Latest Legal News and Analysis

Exploring Intentional Bias in the Marketing of Consumer Products

Advances in artificial intelligence (“AI”) continue to present exciting opportunities to transform decision-making and targeted marketing within the world of consumer products. While AI has been touted for its capabilities in creating fairer, more inclusive systems, including with respect to lending and creditworthiness, AI models can also embed human and societal biases in a way that can result in unintended, and potentially unlawful, downstream effects.

Mostly when we talk about bias, we focus on accidental bias. What about intentional bias? The following hypothetical illustrates the problem as it relates to the marketing of consumer products.

In targeted advertising, an algorithm learns all sorts of things about a person through social media and other online sources, and then targets ads to that person based on the data collected. Let’s say that the algorithm targets ads to African Americans. By “intentional” we don’t mean to suggest that the software developer has racist or otherwise nefarious objectives relating to African Americans. Rather we mean that the developer simply intends to make use of whatever information is out there to target ads to that particular population (even if that data is specifically race or data that correlates with race, such as ZIP Code). This raises a number of interesting questions.

Setting aside certain situations involving bona fide occupational qualifications (for those familiar with employment law), would this be okay legally? What if the product is certain hair care products or a particular genre of music? What about rent-to-own furniture based on data that suggest that African Americans are greater than average consumers of such furniture? Taking this scenario a step further, what if it is well documented that rent-to-own arrangements are a significant contributing factor to poverty among African Americans?

Bias can also be introduced into the data through the way in which the data are collected or selected for use. What if the data, collected from predominately African American ZIP Codes, suggest that African Americans typically are willing to pay higher rental rates, and so the advertisements directed to African Americans include those higher rates? Could the companies promoting these advertisements based on those statistical correlations be subject to liability for predatory or discriminatory lending practices? Do we still need human judgment to make sure that AI supported decision making is fair?

These are among the questions that we’ll explore in our upcoming panel on targeting advertising and we invite you to join us.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 47

About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

Bradley Merrill Thompson, Epstein Becker Green, medical drug, device, FDA

 BRADLEY MERRILL THOMPSON is a Member of the Firm at Epstein Becker & Green, P.C. There, he counsels medical device, drug, and combination product companies on a wide range of FDA regulatory, reimbursement, and clinical trial issues. 

Mr. Thompson regularly defends companies receiving FDA warning letters, on a wide gamut of subjects including good manufacturing practice compliance and off label promotion. He frequently counsels companies on premarket clearance and approval strategies and on marketing strategies. When medical device companies...

Daniel C. Fundakowski Pharmaceutical and Healthcare Attorney Epstein, Becker & Green Law Firm
Senior Counsel

DANIEL C. FUNDAKOWSKI is a Senior Counsel in the Health Care & Life Sciences and Litigation & Business Disputes practices in the Washington, DC, office of Epstein Becker Green. His practice focuses on representing leading pharmaceutical and device manufacturers, retail pharmacy chains, compounding pharmacies, academic medical centers, skilled nursing facilities, and other institutional providers in health care regulatory and litigation matters.


Mr. Fundakowski’s...