Tobacco Advertising: Whether the FDA's Restrictions Violate Freedom of Speech

96-825 A

CRS Report for Congress

Received through the CRS Web

Tobacco Advertising: Whether the FDA's

Restrictions Violate Freedom of Speech

Updated May 23, 1997

Henry Cohen

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Tobacco Advertising: Whether the FDA's Restrictions

Violate Freedom of Speech

Summary

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.

Contents

I. The FDA's Final Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The First Amendment: Applicability To Commercial Speech . . . . . . . . . . . . . 3

III. Applying Central Hudson: First Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV. Applying Central Hudson: Second Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 4

V. Applying Central Hudson: Third Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI. Applying Central Hudson: Fourth Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VII. Consideration in Light of 44 Liquormart . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VIII. The Penn Advertising Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IX. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tobacco Advertising: Whether the FDA's

Restrictions Violate Freedom of Speech

I. The FDA's Final Rule

This report considers whether the provisions of the Food and Drug

Administration'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 final rule as a whole "is to establish restrictions on the sale,

distribution, and use of cigarettes and smokeless tobacco in order to reduce the

number of children and adolescents who use these products . . . ."1 The purpose of

the advertising regulations in particular "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."2

The restrictions on tobacco advertising were scheduled to take effect August 28,

1997, except for the seventh one (see the list in the next paragraph), which was

scheduled to take effect February 28, 1998. 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 Food

and Drug Administration shall not implement any of the additional Regulations set

for implementation on August 28, 1997, pending further orders by the court."3

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

or playground area in a public park, . . . elementary school or secondary school."4

Second, it permits other outdoor advertising, and advertising in newspapers, magazines, and periodicals, but only in "black text on a white background." This

restriction does not apply, however, "[i]n any facility where vending machines and

1

61 Fed. Reg. 44,616 (1996) (to be codified at 21 C.F.R. § 897.2).

2

61 Fed. Reg. 44,465 (1996).

3

Coyne Beahm Inc. v. Food and Drug Administration, No. 2:95CV00591 (M.D. N.C. Apr.

25, 1997).

4

61 Fed. Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.30(b)).

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self-service displays are permitted,"5 or in any "adult publication," as the regulation

defines the term.6 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."7 Fourth, it requires all advertisements for tobacco

products to contain the words "A Nicotine-Delivery Device for Persons 18 or

Older."8 Fifth, it prohibits the sale of "any item (other than cigarettes or smokeless

tobacco) or service, which bears the brand name . . . , logo, symbol, motto, selling

message, recognizable color or pattern of colors, or any other indicia of product

identification identical or similar to, or identifiable with, those used for any brand of

cigarettes or smokeless tobacco."9 Sixth, it prohibits any manufacturer, distributor,

or retailer from offering "any gift or item (other then [sic] cigarettes or smokeless

tobacco) to any person purchasing cigarettes or smokeless tobacco in consideration

of the purchase thereof . . . ."10 Seventh, it prohibits any manufacturer, distributor,

or retailer from sponsoring "any athletic, musical, artistic or other social or cultural

event, or any entry or team in any event, in the brand name . . . , logo, motto, selling

message, recognizable color or pattern of colors, or any other indicia of product

identification identical or similar to, or identifiable with, those used for any brand of

cigarettes or smokeless tobacco." They may, however, sponsor such events "in the

name of the corporation which manufactures the tobacco product, provided that both

the registered corporate name and the corporation were registered and in use in the

United States prior to January 1, 1995, and that the corporate name does not include

any brand name . . . , logo, motto, selling message, recognizable color or pattern of

colors, or any other indicia of product identification identical or similar to, or

identifiable with, those used for any brand of cigarettes or smokeless tobacco."11

5

They are permitted, under the final rule, "in facilities where the retailer ensures that no

person younger than 18 years of age is present, or permitted to enter, at any time." 61 Fed.

Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.16(c)(2)(ii)).

6

61 Fed. Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.32(a)).

7

61 Fed. Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.32(b)). Audio that

accompanies video is subject to the same restriction as audio alone; i.e., music and sound

effects are prohibited. The exceptions applicable to the prohibition of color advertisements

-- i.e., "adult" publications and facilities where vending machines and self-service displays

are permitted -- apparently apply here as well. These exceptions appear in subsection (a),

which prohibits color advertisements, and not in subsection (b), which restricts audio and

video advertisements, but the exceptions state that they apply to "This section," rather than

to "This subsection." In addition, application of subsection (b) to "adult" publications and

"adults only" facilities might be unconstitutional, and the Supreme Court construes statutes

"where fairly possible so as to avoid substantial constitutional questions." United States v.

X-Citement Video, Inc., 115 S. Ct. 464, 467 (1994).

8

61 Fed. Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.32(c)). This subsection is

apparently also subject to the exceptions applicable to subsection (a).

9

61 Fed. Reg. 44,617 (1996) (to be codified at 21 C.F.R. § 897.34(a)).

10

61 Fed. Reg. 44,617-44,618 (1996) (to be codified at 21 C.F.R. § 897.34(b)).

11

61 Fed. Reg. 44,618 (1996) (to be codified at 21 C.F.R. § 897.34(c)).

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II. The First Amendment: Applicability

To Commercial Speech

The First Amendment to the United States Constitution provides that "Congress

shall make no law . . . abridging the freedom of speech, or of the press. . . ." This

language restricts government both more and less than it would if it were applied

literally. It restricts government more in that it applies not only to Congress, but to

all branches of the federal government, and to all branches of state and local

government.12 It restricts government less in that it provides no protection to some

types of speech and only limited protection to others. One type of speech to which

it applies only limited protection is commercial speech, which is "speech that

proposes a commercial transaction."13

Commercial speech may be banned if it advertises an illegal product or service,

and, unlike fully protected speech, may be banned if it is unfair or deceptive. Even

when it advertises a legal product and is not unfair or deceptive, the government may

regulate commercial speech more than it may regulate fully protected speech.

Fully protected speech may be restricted only "to promote a compelling interest"

and only by "the least restrictive means to further the articulated interest."14 For

commercial speech, by contrast, the Supreme Court has prescribed the four-prong

Central Hudson test to determine its constitutionality. This test asks initially (1)

whether the commercial speech at issue is protected by the First Amendment (that is,

whether it concerns a lawful activity and is not misleading) and (2) whether the

asserted governmental interest in restricting it is substantial. "If both inquiries yield

positive answers," then to be constitutional the restriction must (3) "directly advance[

] the governmental interest asserted," and (4) be "not more extensive than is

necessary to serve that interest."15

In May 1996, in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court

increased the protection that the Central Hudson test guarantees to commercial

speech by making clear that a total prohibition on "the dissemination of truthful,

nonmisleading commercial messages for reasons unrelated to the preservation of a

fair bargaining process" will be subject to a stricter review by the courts than a

12

Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).

13

Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989)

(emphasis in original).

14

Sable Communications of California, Inc. v. Federal Communications Commission, 492

U.S. 115, 126 (1989).

15

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447

U.S. 557, 566 (1980). In Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2377 (1995), the

Court referred to the Central Hudson test as having three parts, and referred to its second,

third, and fourth prongs as, respectively, it first, second, and third. In 44 Liquormart, Inc.

v. Rhode Island, 116 S. Ct. 1495, 1521 (1996), the Justices seemed to return to the

traditional numbering.

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regulation designed "to protect consumers from misleading, deceptive, or aggressive

sales practices."16

III. Applying Central Hudson: First Prong

The first prong of the Central Hudson test asks whether the restricted speech

concerns a lawful activity and is not misleading. In considering the FDA's final rule,

we will assume that the advertising is not misleading, as if it is, it is already illegal

under § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, which prohibits

"unfair or deceptive acts or practices in or affecting commerce." We will also

assume that the advertisements concern a lawful activity, even though the sale of

tobacco products to minors is illegal in every state.17 We will assume that the

advertisements concern a lawful activity for two reasons. First, even if, as some

critics charge, some tobacco advertisements are aimed at children, they apparently

do not overtly solicit minors to buy tobacco products, whether explicitly in words,

by showing pictures of minors smoking, or by appearing in publications designed

specifically for children or teenagers. Second, the FDA's final rule limits adults'

access to tobacco advertising, as adults as well as children see billboards, for

example, within 1,000 feet of a school or playground. If we did not assume that the

advertisements concern a lawful activity, then any governmental restriction placed

on them would be constitutional, and our analysis would end here. Although it is

conceivable that a court could take this approach, it seems unlikely, in light of the

two factors just mentioned. Therefore, we will proceed to apply the rest of the

Central Hudson test.

IV. Applying Central Hudson: Second Prong

The second prong of the Central Hudson test asks whether the asserted

governmental interest in restricting the commercial speech in question is substantial.

The Supreme Court, in Posadas de Puerto Rico Associates v. Tourism Company of

Puerto Rico, held that a government's "interest in the health, safety, and welfare of

its citizens constitutes a `substantial' governmental interest."18 Although Part VI of

the Court's opinion in 44 Liquormart questioned some aspects of Posadas, this was

not one of them, and there seems no doubt that the FDA's final rule would satisfy the

second prong. It is on the next two prongs that the case likely will turn, as these

prongs address whether the government's restriction on commercial speech is a

reasonable way to further that interest.

16

116 S. Ct. 1495, 1507 (1996). The nine Justices were unanimous in striking down the

law, which prohibited advertising the price of alcoholic beverages, but only parts of Justice

Stevens' opinion for the Court were joined by a majority of Justices. The quotations above,

for example, are from Part IV of the Court's opinion, which was joined by only Justices

Kennedy and Ginsburg besides Justice Stevens.

17

U.S. Department of Health and Human Services, Public Health Service, Centers for

Disease Control and Prevention, State Laws on Tobacco Control -- United States, 1995.

18

478 U.S. 328, 341 (1986).

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V. Applying Central Hudson: Third Prong

In Posadas, the Supreme Court, applying the third prong of the Central Hudson

test, found reasonable the Puerto Rico legislature's view that restricting advertising

would directly advance the asserted governmental interest by reducing the demand

for the product advertised (which, in this case, was gambling).19 The Court also cited

with approval a statement from an earlier case that the third prong of Central Hudson

is satisfied where the legislative judgment is "not manifestly unreasonable."20

In subsequent cases, however, the Court has not deferred as readily to legislative

judgments that a restriction directly advances the asserted governmental interest. In

Edenfield v. Fane,21 for example, the Court struck down a Florida ban on solicitation

by certified public accountants, even though the Court had previously, in Ohralik v.

Ohio State Bar Association,22 upheld a ban on solicitation by attorneys. The Court

found that the government had substantial interests in the ban, including the

prevention of fraud, the protection of privacy, and the need to maintain CPA

independence and to guard against conflicts of interest. However, the Court found

no evidence that the ban directly advanced these interests, and noted, among other

things, that, "[u]nlike a lawyer, a CPA is not `a professional trained in the art of

persuasion,'" and "[t]he typical client of a CPA is far less susceptible to manipulation

than the young accident victim in Ohralik."23

In Ibanez v. Florida Board of Accountancy, the Court held that the Florida

Board of Accountancy could not reprimand an accountant for truthfully referring to

her credentials as a Certified Public Accountant and a Certified Financial Planner in

her advertising and other communication with the public, such as her business cards

and stationery. The Court applied the Central Hudson test, noting that "the State

`must demonstrate that the harms it recites are real and that its restriction will in fact

alleviate them to a material degree.'"24

In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27

U.S.C. § 205(e), that prohibits beer labels from displaying alcohol content unless

state law requires such disclosure.25 The Court found sufficiently substantial to

satisfy the second prong of the Central Hudson test the government's interest in

curbing "strength wars" by beer brewers who might seek to compete for customers

on the basis of alcohol content. However, it concluded that the ban "cannot directly

and materially advance" this "interest because of the overall irrationality of the

19

Id. at 341-342.

20

Id. at 342, citing Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).

21

507 U.S. 761 (1993).

22

436 U.S. 447 (1978).

23

507 U.S. at 775.

24

114 S. Ct. 2084, 2089 (1994).

25

115 S. Ct. 1585 (1995).

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Government's regulatory scheme."26 This irrationality is evidenced by the fact that

the ban does not apply to beer advertisements, and by the fact that the statute requires

the disclosure of alcohol content on the labels of wines and spirits.

Finally, in 44 Liquormart, the Court, in striking down a prohibition on

advertising the price of alcoholic beverages, found that Rhode Island had not met its

burden of showing that the "ban will significantly advance the State's interest in

promoting temperance."27

Cases like Edenfield, Ibanez, Rubin, and 44 Liquormart indicate that, to satisfy

the third prong of the Central Hudson test, the government must present evidence to

support its claim that its restriction on commercial speech directly and materially

advances a substantial governmental interest. In Florida Bar v. Went For It, Inc., the

Court upheld a rule of the Florida Bar that prohibited personal injury lawyers from

sending targeted direct-mail solicitations to victims and their relatives for 30 days

following an accident or disaster.28 The Bar argued "that it has a substantial interest

in protecting the privacy and tranquility of personal injury victims and their loved

ones against intrusive, unsolicited contact by lawyers,"29 and the Court found that

"[t]he anecdotal record mustered by the Bar" to demonstrate that its rule would

advance this interest in a direct and material way was "noteworthy for its breadth and

detail"; it was not "mere speculation and conjecture."30

By contrast, in 44 Liquormart, the Court found that "any conclusion that

elimination of the ban [on alcoholic beverage price advertising] would significantly

increase alcohol consumption would require us to engage in the sort of `speculation

or conjecture' that is an unacceptable means of demonstrating that a restriction on

commercial speech directly advances the State's asserted interest."31

With respect to its restrictions on tobacco advertising, the FDA concluded "that

tobacco advertising plays a concrete role in the decision of minors to smoke, and that

each specific restriction on this advertising that it is adopting will contribute to

limiting its effect and thus to protecting the health of children and adolescents under

the age of 18."32 If this is true, then the advertising restrictions would apparently

satisfy the third prong of the Central Hudson test. Of course, it is possible for a court

to find one of the restrictions constitutional but another unconstitutional. If

eliminating billboard advertising near schools and playgrounds reduces smoking by

children, it does not necessarily mean that eliminating color from advertisements will

have that effect.

26

Id. at 1592.

27

116 S. Ct. at 1509.

28

115 S. Ct. 2371 (1995).

29

Id. at 2376.

30

Id. at 2377.

31

116 S. Ct. at 1510.

32

61 Fed. Reg. 44,474 (1996).

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The FDA writes: "It is not necessary in satisfying this prong of Central Hudson

for the agency to prove conclusively that the correlation [between advertising and

minors' smoking] in fact (empirically) exists, or that the steps undertaken will

completely solve the problem. . . . Rather, the agency must show that the available

evidence, expert opinion, surveys and studies provide sufficient support for the

inference that advertising does play a material role in children's tobacco use."33 This

seems accurate, given the Court's acceptance of anecdotal evidence (albeit anecdotal

evidence "noteworthy for its breadth and detail") in Florida Bar v. Went For It, Inc.,

even though anecdotal evidence by itself cannot conclusively prove general

propositions.

VI. Applying Central Hudson: Fourth Prong

We turn now to the fourth and final requirement of the Central Hudson test -that restrictions on commercial speech be "not more extensive than is necessary" to

serve the asserted governmental interest. The Supreme Court, subsequent to Central

Hudson, held that this requirement is not to be interpreted "strictly" to require the

legislature to use the "least restrictive means" available to accomplish its purpose.

Instead, the Court held, legislation regulating commercial speech satisfies the fourth

prong if there is a reasonable "fit" between the legislature's ends and the means

chosen to accomplish those ends.34

As evidenced by the decision in Cincinnati v. Discovery Network, Inc., this

looser interpretation does not guarantee that a restriction will satisfy the fourth prong.

The Supreme Court in that case struck down a Cincinnati regulation that banned

newsracks on public property if they distributed commercial publications, but not if

they distributed news publications.35 The Court found that the asserted governmental

interest in safety and esthetics was substantial, but that the distinction between

commercial and noncommercial speech "bears no relationship whatsoever to the

particular interests that the city has asserted."36 The city, therefore, did not establish

"the `fit' between its goals and its chosen means that is required by our opinion in

Fox."37

In 44 Liquormart, the Court found it "perfectly obvious that alternative forms

of regulation would be more likely to achieve the State's goal of promoting

temperance. As the State's own expert conceded, higher prices can be maintained

33

Id.

34

Board of Trustees of the State University of New York v. Fox, supra note 13, at 480. The

Court does "not equate this test with the less rigorous obstacles of rational basis review."

Florida Bar, supra note 28, 115 S. Ct. at 2380. In other words, although a restriction on

commercial speech need not constitute the least restrictive means to satisfy the fourth prong,

it must be more than merely rational.

35

507 U.S. 410 (1993)

36

Id. at 424 (emphasis in original).

37

Id. at 428.

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either by direct regulation or by increased taxation. . . . Even educational campaigns

. . . might prove to be more effective."38

The Court's strong language in Cincinnati v. Discovery Network ("no relationship whatsoever") and in 44 Liquormart ("perfectly obvious") suggests that it

found the regulations it struck down in those two cases to be particularly poorly

drawn. The FDA's final rule may more likely be upheld, on the grounds that, even

if it not the least restrictive alternative, it does not "burden substantially more speech

than necessary to further the government's legitimate interests,"39 and there are not

"numerous and obvious less burdensome alternatives"40 available to further these

interests. The FDA states that it "considered the alternatives suggested by the

comments [to its rule as originally proposed] and [found] that none of them is an

appropriate alternative . . . ."41

One commentator wrote, after 44 Liquormart, that the FDA's "prohibition on

school-zone billboards that advertise liquor [sic] -- which, of course, are read by

people who are not schoolchildren -- might fall as being less effective than nonspeech

alternatives. These alternatives could include direct prohibition on the sale of

cigarettes in school zones, and federal mandating and funding of educational

campaigns in schools to stress the health dangers of smoking."42 The FDA might

respond that, as for the alternative of prohibiting the sale of cigarettes in school

zones, the problem is not the sale of cigarettes in school zones; it is the advertising

of cigarettes in school zones, which cause minors to purchase them outside of school

zones. As for educational campaigns, the FDA might argue that cigarette

advertisements undercut the effectiveness of such campaigns, and may be prohibited

on that basis. In any case, because its final rule does not impose a total ban on

particular speech, as did the statute struck down in 44 Liquormart, a reasonable fit

between its ends and its means is all that is required.

VII. Consideration in Light of 44 Liquormart

As noted above, the Supreme Court in 44 Liquormart indicated that a total

prohibition on "the dissemination of truthful, nonmisleading commercial messages

for reasons unrelated to the preservation of a fair bargaining process" will be subject

to a stricter review by the courts than a regulation designed "to protect consumers

38

44 Liquormart, supra note 16, 116 S. Ct. at 1510.

39

United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993).

40

Florida Bar, supra note 28, 115 S. Ct. at 2380.

41

62 Fed. Reg. 44,499 (1996).

42

Jerome L. Wilson, A Toast to Commercial Speech, LEGAL TIMES, July 29, 1996, at S 42.

The Supreme Court itself, in 44 Liquormart (as quoted in the text accompanying footnote

38, supra), commented that, as a means to reduce alcohol consumption, "educational

campaigns . . . might prove to be more effective" than a speech ban.

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from misleading, deceptive, or aggressive sales practices."43 This language would

make it less likely that a total ban on tobacco advertising would be upheld than prior

to 44 Liquormart, but does it have any implications for the constitutionality of the

FDA's final rule?

The FDA argues that the language just quoted from 44 Liquormart "has no

application to the restrictions that FDA is imposing for two reasons. First, FDA is

not entirely prohibiting the dissemination of commercial messages about cigarettes

and smokeless tobacco. . . . Second, the restrictions are related to the bargaining

process," as they "derive from the fact that, at least as a matter of law, minors are not

competent to use these products."44

The FDA's first reason seems correct, although an opponent of the restrictions

might argue that the restrictions amount to something closer to a total prohibition

than might appear. If, for example, it turned out that, in some urban areas, most or

even all places where outdoor advertising exists are "within 1,000 feet of the

perimeter of any public playground or playground area in a public park, . . .

elementary school or secondary school," then a court might find 44 Liquormart more

relevant. The same might be the case if, under the FDA's definition, there are

relatively few "adult publications" with wide circulation or facilities "where vending

machines and self-service displays are permitted." Even if an opponent of the FDA's

restrictions could demonstrate any of this to be true, however, the FDA could still

argue that the restrictions did not amount to the total prohibition that troubled the

Court in 44 Liquormart.

The FDA's second reason -- that "the restrictions are related to the bargaining

process," as they "derive from the fact that, at least as a matter of law, minors are not

competent to use these products" -- seems more questionable, because the issue is

arguably more whether minors are competent to resist the advertisements than

whether they are competent to use the products. Although the FDA's restrictions may

be related to the bargaining process, it seems that they are more directly intended as

a public health measure.

Nevertheless, the FDA could argue that its proposal is aimed at protecting

children, and every state's law already bans the sale of tobacco products to children.45

Therefore, the FDA could argue, state law has proved inadequate to prevent children

from smoking, and its advertising restrictions are needed. The Court in 44

Liquormart was ruling on a total ban on price advertising, not on a regulation aimed

at protecting children, when it said "that attempts to regulate speech are more

dangerous than attempts to regulate conduct." Its statement arguably would not apply

to a regulation of speech intended to protect children by supplementing a regulation

of conduct that has proved inadequate.

43

Id. at 1507, quoted in the text accompanying note 16, supra.

44

61 Fed. Reg. 44,470 (1996).

45

See, note 17, supra.

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The fact that the FDA's proposal is designed to protect children seems

important. A thread that appears to run through 44 Liquormart is the Justices'

hostility to the paternalistic aspect of Rhode Island's ban. In Part IV of the Court's

opinion, Justice Stevens writes:

The First Amendment directs us to be especially skeptical of

regulations that seek to keep people in the dark for what the

government perceives to be their own good.46

In Part V, he adds that mere speculation as to whether "a restriction on

commercial speech directly advances the State's asserted interest . . . certainly does

not suffice when the State takes aim at accurate commercial information for

paternalistic ends."47 Justice Scalia, concurring, "share[s] Justice Stevens' aversion

toward paternalistic governmental policies that prevent men and women from hearing

facts that might not be good for them."48 Justice Thomas, in his concurring opinion,

refers to "the antipaternalistic premises of the First Amendment."49

The ban on price advertising in 44 Liquormart, it should be emphasized, was

designed to reduce the sale of alcohol generally, and not to reduce the illegal sale of

alcohol to children in particular. The FDA's final rule, by contrast, is aimed at

children, and the Justices would seem likely to have significantly less objection to

governmental paternalism toward children than toward adults. In Federal

Communications Commission v. Pacifica Foundation, the Supreme Court, upholding

an FCC regulation that limited the hours during which "indecent" material could be

broadcast on the radio, found "that the government's interest in the `well-being of its

youth' . . . justified the regulation of otherwise protected expression."50 In Sable

Communications of California, Inc. v. Federal Communications Commission, the

Supreme Court found that the "compelling interest in protecting the physical and

psychological well-being of minors . . . extends to shielding minors from the

influence of literature that is not obscene by adult standards."51 Arguably, this

interest would also extend to shielding minors from advertisements that may not be

kept from adults.

At the same time, the Supreme Court has said that the government may not

"reduce the adult population . . . to reading only what is fit for children."52 Thus, for

example, indecent material may not be banned from the airwaves for 24 hours a

46

116 S. Ct. at 1508.

47

Id. at 1510.

48

Id. at 1515 (Scalia, J., concurring).

49

Id. at 1517 (Thomas, J., concurring).

50

438 U.S. 726, 749 (1978). In Denver Area Educational Television Consortium, Inc. v.

Federal Communications Commission, 116 S. Ct. 2374, 2386 (1996), the Court applied its

reasoning in Pacifica to uphold a restriction on indecent material on cable television.

51

52

Sable, supra note 14, 492 U.S. at 126.

Bolger v. Youngs Drug Products, Inc., 463 U.S. 63, 73 (1983); Sable, supra note 14, 492

U.S. at 128.

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day,53 and a restriction on tobacco advertising designed to protect children would be

unconstitutional if it overly restricted adults' access.

In conclusion, it appears that a strong case can be made that 44 Liquormart does

not alter the way a court would apply the Central Hudson test to the FDA's proposal.

It may be, however, that 44 Liquormart is part of a trend on the Court's part to

increase the First Amendment protection it accords to commercial speech. If so, and

if this trend continues, then the Court might strike down the FDA's final rule, or parts

of it, despite what one might glean from its holdings to date.

VIII. The Penn Advertising Case

The U.S. Court of Appeals for the Fourth Circuit has upheld municipal

restrictions on billboard advertisements of tobacco products and alcoholic beverages.

In Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, the

court of appeals upheld a city ordinance that prohibits, except in certain

commercially and industrially zoned areas of the city, any billboard that advertises

cigarettes.54 The Supreme Court vacated and remanded to the Fourth Circuit "for

further consideration in light of 44 Liquormart . . . ." In Anheuser-Busch, Inc. v.

Schmoke, a Baltimore ordinance prohibiting billboards that advertise alcoholic

beverages was also upheld by the Fourth Circuit and vacated and remanded by the

Supreme Court "for further consideration in light of 44 Liquormart . . . ."55

On November 14, 1996, the Fourth Circuit, after further consideration in light

of 44 Liquormart, readopted its previous decisions in both cases, and the Supreme

Court subsequently declined to review the cases.56 In Penn Advertising, the tobacco

advertising case, the court said simply that it was readopting its previous decision for

the reasons it gave in its opinion issued the same day in Anheuser-Busch, the

alcoholic beverage advertising case. In that case, the court wrote that, in its previous

decision,

we recognized the reasonableness of Baltimore City's legislative

finding that there is a "definite correlation between alcoholic

beverage advertising and underage drinking." We also

concluded that the regulation of commercial speech is not more

extensive than necessary to serve the governmental interest.

Recognizing that in the regulation of commercial speech there

is some latitude in the "fit" between the regulation and the

objective, we concluded that "no less restrictive means may be

53

Action for Children's Television v. Federal Communications Commission, 932 F.2d 1504,

1509 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992).

54

63 F.3d 1318 (4th Cir. 1995), vacated and remanded, 116 S. Ct. 2575 (1996).

55

63 F.3d 1305 (4th Cir. 1995), vacated and remanded, 116 S. Ct. 1821 (1996).

56

Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996), cert. denied, 137 L.Ed.2d 714

(1997); Penn Advertising v. Mayor and City Council of Baltimore, 101 F.3d 332 (4th Cir.

1996), cert. denied, 137 L.Ed.2d 715 (1997).

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available to advance the government's interest. While we

acknowledged that the geographical limitation on outdoor

advertising may also reduce the opportunities for adults to

receive the information, we recognize that there were numerous

other means of advertising to adults that did not subject the

children to "involuntary and unavoidable solicitation [while]

walking to school or playing in their neighborhood. . . .

In 44 Liquormart, by contrast, the State prohibited all

advertising throughout Rhode Island, "in any manner

whatsoever," of the price of alcoholic beverages except for price

tags or signs displayed with the beverages and not visible from

the street. . . . While Rhode Island's blanket ban on price

advertising failed Central Hudson scrutiny, Baltimore's attempt

to zone outdoor alcoholic beverage advertising into appropriate

areas survived out "close look" at the legislature's means of

accomplishing its objective . . . . Baltimore's ordinance

expressly targets persons who cannot be legal users of alcoholic

beverages, not legal users as in Rhode Island. More

significantly, Baltimore does not ban outdoor advertising of

alcoholic beverages outright but merely restricts the time, place,

and manner of such advertisements. And Baltimore's ordinance

does not foreclose the plethora of newspaper, magazine, radio,

television, direct mail, Internet, and other media available to

Anheuser-Busch and its competitors. . . . .57

IX. Conclusions

The FDA's final rule would satisfy the first prong of the Central Hudson test,

given our assumption that it would regulate advertising that is lawful and not

misleading. It would also almost certainly satisfy the second prong, as the Supreme

Court has found that the government has a substantial interest in public health, safety,

and welfare. The constitutionality of the final rule, therefore, will likely turn upon

whether its restrictions directly and materially advance this interest (third prong), and

whether there is a reasonable fit between the government's ends and means (fourth

prong). We now consider the constitutionality of each of the seven features ("First"

through "Seventh") of the regulation we outlined in the second paragraph of this

report.

First, the FDA's ban on billboard advertising within 1,000 feet of any

playground or school would appear constitutional, provided the government can present credible evidence, if challenged, that these restrictions would be likely to reduce

tobacco consumption by minors. If the FDA can show that billboard advertising

57

Citations have been omitted throughout the quotation.

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increases the number of minors who smoke, then it would seem to follow that

restricting such advertising would have the opposite effect.58

Second, the prohibition on color advertising for tobacco products, in all but

"adult" publications and facilities "where vending machines and self-service displays

are permitted," would also appear constitutional if the government can present

credible evidence that the prohibition would reduce tobacco consumption by

minors.59 A causal relationship between color advertising and minors' tobacco use

might be more difficult to establish than one between billboard advertising and

minors' tobacco use, but the FDA cites studies that it claims "demonstrate the impact

that images and colors, cartoons, and pictures and other graphic material have on

children and adolescents."60

Third, the prohibition of music or sound effects in audio advertising, and of

pictures and color text in video advertising, would be subject to the same analysis as

the first two prohibitions just discussed.61

Fourth, the compelled speech requirement ("A Nicotine-Delivery Device for

Persons 18 or Older") in all tobacco advertisements would appear likely to be found

constitutional, as the Supreme Court has held that an advertiser's

constitutionally protected interest in not providing any particular

factual information in his advertising is minimal. . . . [A]n

advertiser's rights are reasonably protected as long as disclosure

requirements are reasonably related to the State's interest in

preventing deception of consumers. . . . The right of a

commercial speaker not to divulge accurate information

regarding his services is not . . . a fundamental right.62

58

The billboard restriction might be problematic, however, if it turns out that there are few

areas in a typical city that are not within 1,000 feet of a school or playground. See, pages

9-10, supra. In its first decision in Penn Advertising, supra note 54, the Fourth Circuit

wrote (quoting itself in Anheuser-Busch, supra note 55): "If there were some less restrictive

means of screening outdoor advertising from minors, or of reducing the area of billboard

regulation in a manner that would have its focus more efficiently on reaching minors, the

City would have to consider those alternatives. But . . . [i]n the face of a problem as

significant as that which the City seeks to address, the City must be given some reasonable

latitude." 63 F.3d at 1316, 1325-1326.

59

Again, provided that the restriction is not viewed as equivalent to a total restriction; see,

pages 9-10, supra.

60

61 Fed. Reg. 44,509 (1996).

61

As discussed in note 7, supra, it appears that this restriction would be construed to contain

exceptions for "adult" publications and facilities "where vending machines and self-service

displays are permitted."

62

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985) (emphasis

in original).

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In 44 Liquormart, the Court confirmed that when a state "requires the disclosure

of beneficial consumer information," the requirement is entitled to "less than strict

review."63

Fifth, the prohibition on the sale of items or services, other than tobacco

products, with tobacco products' brand names or symbols appears to be a way to

reduce what is a form of tobacco advertising, and, as such, might be comparable to

the billboard restriction. A difference, however, is that this prohibition does not have

as direct a connection with children. Whereas the billboard restriction is limited to

billboards within 1,000 feet of schools and playgrounds, the prohibition of cigarette

brand names on non-tobacco products is not limited to products used widely by

minors. Therefore, an opponent of the prohibition might charge that it is overbroad.

The FDA might respond that there are not many products that are purchased

predominantly by teenagers under 18, so there would be no effective way to limit the

prohibition. However, the Supreme Court has said that the government may not

"reduce the adult population . . . to . . . only what is fit for children."64 The FDA

might respond that its regulation does not do that, as adults will continue to have

access to tobacco advertising in media other than packages containing non-tobacco

products. In short, it seems uncertain whether this restriction is constitutional.

Sixth, the prohibition on offering gifts in consideration of purchasing tobacco

products does not restrict speech and therefore raises no First Amendment issue.

Seventh, the prohibition on sponsoring events in a brand name, logo, etc.,

identifiable with one used for a tobacco product appears, for constitutional purposes,

comparable to the prohibition on the sale of items or services, other than tobacco

products, with tobacco products' brand names or symbols. It limits a form of tobacco

advertising, but is not limited to events attended predominantly by teenagers under

18, and for that reason it seems uncertain whether this prohibition is constitutional.

Even if this prohibition is upheld generally, one aspect of it might be found

unconstitutional. The prohibition does not apply to sponsorships in a corporate name

that does not include a brand name, logo, etc., if "both the corporate name and the

corporation were registered and in use in the United States prior to January 1, 1995."

The FDA writes that the distinction "is intended to prevent manufacturers from

circumventing this restriction by incorporating separately each brand that they

manufacture for use in sponsorship."65 It is unclear why the FDA considers that

harmful, as its rule in all cases prohibits use of a corporate name that includes a brand

name. The effect on smoking by minors would seem to be the same whether a

corporate name and a corporation were registered before or after January 1, 1995.

Perhaps, though, if this aspect of the restriction were challenged, the FDA could

persuade a court that the distinction was justifiable.

63

44 Liquormart, supra note 16, 116 S. Ct. at 1507.

64

See, note 52.

65

61 Fed. Reg. 44,534 (1996).

In summary, 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.