The First Amendment and Tobacco Advertisements

Image by Roland Mey from Pixabay

By Max Kurkin, Vol. 21 Staff Writer

Varying interpretations of the First Amendment have been at the forefront of discussions within the tobacco industry. The common understanding is that although the First Amendment protects free speech, that right may be limited on narrowly tailored grounds when there is a substantial governmental interest in limiting certain speech.

The Family Smoking Prevention and Tobacco Control Act

            In 2009, President Barack Obama enacted a new law to encourage people to stop smoking and hopefully curb the leading preventable cause of death in the United States. This new law, the Family Smoking Prevention and Tobacco Control Act, was focused on restricting the advertising and promotion of cigarettes and other tobacco products. The Family Smoking Prevention and Tobacco Control Act placed a number of restrictions on cigarette and smokeless tobacco product advertising and other marketing. It also granted the FDA authority to impose additional restrictions on the advertising, promotion and other marketing of tobacco products in order to promote overall public health. These restrictions, despite their good intentions, raised some First Amendment issues, specifically those around corporate speech. 

First Amendment Rights of Individuals and Corporations

            The First Amendment discussion here begins with whether a corporation has the same rights as an individual regarding a freedom of speech. Over the years, ongoing litigation has made clear that the free speech protections under the First Amendment are limited when it comes to the advertising of products, whether by an individual or a company. This form of speech, commonly referred to as commercial speech, has been interpreted and re-interpreted by federal courts over the years. In 1942, the Supreme Court ruled that commercial free speech was not protected by the first amendment in Valentine v. Chrestensen. However, in 1980 when the Supreme Court decided Central Hudson Gas and Electric Corp. v. Public Service Commission, the Court reversed and declared that commercial speech was protected under the First Amendment.

            Subsequent Supreme Court decisions have pointed to commercial speech being only nominally different than any other kind of speech protected under the First Amendment; the right to speech should not be limited just because it is involved with the exchange of money, in itself. However, the Supreme Court’s ruling in Central Hudson still stands as the main guidance for how public actors can regulate commercial speech.

The Central Hudson Test

            Used to evaluate governmental restriction on advertising and other forms of commercial speech, the imposed regulation must pass the Central Hudson Test – a form of intermediate scrutiny. This is a four-pronged test in which the court weighs the strength of the government’s interest in regulation to the burden that the regulation imposes on free speech. To be considered constitutional, the regulation must pass the all of the following four prongs:

1. The speech must concern lawful activity and not be misleading
2. The government must have a substantial interest in regulating the speech
3. The regulation must directly and materially advance the government’s substantial interest
4. The regulation must be narrowly tailored to achieve that interest

Applying Central Hudson to Tobacco Regulations

            First, tobacco use and advertising tobacco products is generally lawful, but some of the advertising can be misleading, especially when directed towards minors. The governmental interest in this instance was preventing minors from tobacco products, which is generally accepted as a “substantial interest” because it relates to the public’s health, safety, or welfare.  Since the use of this test became prevalent, there have been many restrictions that have been rejected because they were not “narrowly tailored” to meet the governmental objectives. The court emphasized that such provisions should not impact adult consumers right to receive information about tobacco products. This test has led to certain restrictions on commercial free speech by tobacco companies, some of which include:

• “Tobacco companies cannot use cartoon characters, such as “Joe Camel,” to advertise their products.
• Tobacco companies cannot target youth in the advertising, promotion or marketing of tobacco products.
• Tobacco companies cannot sponsor concerts or other events with significant youth audiences, including team sporting events, such as football games.
• Tobacco brand names cannot be advertised at stadiums and arenas.”

            Many of these restrictions and others like these came as a result of a Master Settlement Agreement (MSA) between the tobacco companies and the state attorney generals. This 1998 agreement heavily restricted advertisements targeting youth. These constraints were more narrowly tailored than the previously imposed legislation in order to meet the fourth prong of the Central Hudson test. The laws are directed to protecting minors from exposure to tobacco products, which were the leading cause of preventable death in 2009. These provisions have been routinely upheld as constitutional and is what governs today’s commercial free speech regulations.

            More recently, the courts have been tasked with managing the influx in popularity of vapes and e-cigarettes, namely Juuls. Similar to the regulations on tobacco products, regulations have been imposed on vapes and e-cigarettes to protect the health of youth. The 2009 regulation previously mentioned granted the FDA the power to regulate several aspects of e-cigarette production and marketing techniques but there was no true enforceability of this power until much more recently.

            In 2017, the FDA announced a comprehensive plan to reduce tobacco-related diseases and death in youth such as raising the minimum age to purchase e-cigarettes from 18 to 21. Two years later, in September of 2019, a new policy was announced by the FDA forcing companies to cease manufacture and sale of certain flavors of e-cigarettes such as fruity flavors that are likely to appeal to kids. These restrictions have been agreed upon by Juul and other large e-cigarette manufactures and have been upheld in court after much retaliation.

Conclusion

            The Central Hudson Test and subsequent court rulings have laid out the means in which commercial speech can be limited without violating the First Amendment right to freedom of speech. The tobacco industry provides an excellent case study for how commercial speech may or may not be regulated. While the First Amendment does afford individuals and corporations paramount rights, it is important to note that these rights are not unlimited and it is important to know the ways in which they can be restricted constitutionally.