Title: TOBACCO ADVERTISING AND THE FIRST AMENDMENT: A "STRANGE CONSTITUTIONAL DOCTRINE" INDEED (1995 Third Year Paper)
Author(s): David J. Caputo
Subject & Subject keywords: Food and Drug Law "Advertising regulation" "cigarette advertising restrictions" "Tobacco companies"
Abstract:The FDA's proposed advertising restrictions, described in greater detail infra part II, would ban outdoor advertising for tobacco products within a specified distance of schools and playgrounds; require print advertising to be in black and white text-only format except in publications with a sufficiently high adult readership; ban the sale or distribution of promotional items containing the name or logo of branded non-tobacco items; and prohibit brand sponsorship of events such as concerts and auto races. The FDA also proposes to "require manufacturers to establish and maintain a national public education campaign aimed at children and adolescents to counter the pervasive imagery and reduce the appeal created by decades of pro-tobacco messages."

The FDA argues that these regulations will "significantly decrease the amount of positive imagery that makes [cigarettes and smokeless tobacco products] so appealing" to young people, and thus will significantly decrease the number of young people who begin smoking. According to existing evidence, however, it is uncertain whether advertising restrictions actually decrease tobacco use among young people-- indeed, as discussed infra part IV, no consensus emerges from statistical and anecdotal data as to whether such restrictions would have any effect at all. This uncertainty results in the two questions that are the subject of this paper: (1) do the FDA's proposed rules survive First Amendment scrutiny? and (2) should they?

The FDA addresses these questions in the commentary that accompanies the proposed rules, but its legal analysis is wholly unsatisfactory. The constitutionality of most-- but not all-- of these proposed rules hinges on the application of the "commercial speech" doctrine. Commercial speech jurisprudence has been among the most unsettled and unpredictable areas of First Amendment law since the seminal case of Virginia State Board of Phannacy v. Virginia Citizens Consumer Council, Inc. The Supreme Court's efforts to define the category of commercial speech, to scrutinize government attempts to regulate it, and to justify its decisions by reference to First Amendment theory and values have been inconsistent and, at times, irreconcilable. The FDA invoked one strain of this jurisprudence to conclude that its proposed rules could easily withstand a First Amendment challenge, but failed even to mention, much less respond to, the strong arguments, based on both theory and recent precedent, that the tobacco lobby might make in response.

This paper attempts a much more thorough analysis of the First Amendment issues raised by the proposed rules. Such analysis reveals fatal constitutional defects with at least one aspect of the proposal, concludes that the remaining restrictions present much closer constitutional questions than the FDA acknowledges, and argues that the proposal as a whole is difficult to reconcile with a coherent theory of the First Amendment. Towards these ends, I take the following approach. Part II describes the youth tobacco use crisis in this country and presents in greater detail the FDA's proposed rules. Part III summarizes the relevant commercial speech principles, including the definition of commercial speech, the First Amendment values served by protecting or not protecting it to the full extent of the Constitution, and the various tests the Supreme Court has used to scrutinize government attempts to regulate such speech. Part IV applies these principles to the FDA proposal, draws conclusions as to its constitutionality, and argues that the proposal contradicts fundamental First Amendment principles. Part V offers some concluding observations and suggests an alternative approach to restricting speech.