Advertisers are attempting to market to us while we dream. This is not science fiction, but rather a troubling new reality. Using a technique dubbed “targeted dream incubation” (TDI), companies have begun inserting commercial messages into people’s dreams. Roughly, TDI works by: (1) creating an association during waking life using sensory cues (for example, a pairing of sounds, visuals, or scents); and (2) as the subject is drifting off to sleep, the association is again introduced with the goal of triggering related dreams with related subject matter. Based on a 2021 American Marketing Association survey, 77 percent of 400 companies surveyed plan to experiment with dream advertising—or what this Article calls “branding dreams”—by 2025.
As a therapeutic technique, TDI is being found by sleep and dream researchers to have various benefits such as improving sleep quality, stimulating creativity, and treating addiction. However, when advertisers hijack TDI for commercial purposes, serious harms emerge. These harms are most apparent when the practice of branding dreams is employed in connection with addictive products. But health, privacy, liberty, economic, and cultural concerns also exist more broadly. In fact, dozens of sleep and dream researchers have signed an open letter calling for “new protective policies” regarding dream advertising, lest “dreams become just another playground for corporate advertisers.”
Such specifically tailored regulations may be welcome and helpful. However, this Article suggests that—at least in certain instances— the practice of branding dreams might already run afoul of existing advertising regulations. To this end, the Article advances two claims. First, dream advertising appears to fit the definition of subliminal messaging: advertisements “existing or functioning below the threshold of consciousness.” Second, particularly if dream advertising is considered a novel method of subliminal advertising, some forms of dream advertising may be ripe for enforcement as “deceptive acts or practices” under Section 5 of the Federal Trade Commission (FTC) Act
