Tobacco Advertising: Whether the FDA''s Restrictions Violate Freedom of Speech
Publication Date: May 1997
Publisher(s): Library of Congress. Congressional Research Service
This report considers whether the provisions of the FDA's final rule restricting the advertising of cigarettes and smokeless tobacco products violates the First Amendment's guarantee of freedom of speech. The purpose of the advertising regulations "is to decrease young people's use of tobacco products by ensuring that the restrictions on access are not undermined by the product appeal that advertising for these products creates for young people."
Most of the restrictions on tobacco advertising were scheduled to take effect August 28, 1997. However, on April 25, 1997, a federal district court ruled that the Food, Drug, and Cosmetic Act did not authorize the FDA to restrict tobacco advertising (though the court ruled that the FDA did have the authority otherwise to regulate tobacco products). The court ordered that the FDA shall not implement the regulations, pending further orders by the court.
The final rule restricts tobacco advertising in several ways. First, it bans, "outdoor advertising for cigarettes and smokeless tobacco, including billboards, posters, or placards . . . within 1,000 feet of the perimeter of any public playground . . . elementary school or secondary school." Second, it permits other outdoor advertising, and advertising in newspapers, magazines, and periodicals, but only in "black text on a white background." Third, it limits labeling and advertising in audio format "to words only with no music or sound effects," and in video format "to static black and white text only on a white background." Fourth, it requires all advertisements for tobacco products to contain the words "A Nicotine-Delivery Device for Persons 18 or Older." Fifth, it prohibits the sale of "any item (other than cigarettes or smokeless tobacco) or service, which bears the brand name . . . , logo," etc., identical or similar to any brand of cigarettes or smokeless tobacco. Sixth, it prohibits offering any gift or item (other than cigarettes or smokeless tobacco) to any person purchasing cigarettes or smokeless tobacco. Seventh, it prohibits sponsoring "any athletic, musical, artistic or other social or cultural event, or any entry or team in any event, in the brand name . . . , logo," etc., identical or similar to any brand of cigarettes or smokeless tobacco.
As a type of commercial speech, tobacco advertising is entitled to some, but not full, First Amendment protection. Assuming that the advertising is not misleading, a governmental restriction will be constitutional only if it directly advances a substantial governmental interest by a means that represents a reasonable "fit" with the government's ends and is not substantially more restrictive of speech than is necessary. In the case of the FDA's restrictions on tobacco advertising, a court would almost certainly find the governmental interest in preventing minors from smoking to constitute a substantial governmental interest. Whether a court would find that the restrictions directly advance that interest by a means that represents a reasonable fit with the government's ends will depend upon the evidence that the FDA presents to the court. A court could uphold some of the restrictions and strike down others, in whole or in part.