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, maga-
zines, 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. It restricts government less in that it provides no protection to some
12
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." Fo
14
r
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).
1 4 Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
1 5 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. We will assume that th
17
e
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." Although Part VI of
18
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.
1 6 116 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.
1 7 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). The Court also cited
19
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, for example, the
21
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, upheld a ban on solicitation by attorneys. The Court
22
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. The Court found sufficiently substantial t
25
o
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." This irrationality is evidenced by the fact tha
26
t
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. The Bar argued "that it has a substantial interest
28
in protecting the privacy and tranquility of personal injury victims and their loved
ones against intrusive, unsolicited contact by lawyers," and the Court found tha
29
t
"[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." This
33
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. The Co
35
urt 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." The city, therefore, did not establish
36
"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 rela-
tionship 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," and there are no
39
t
"numerous and obvious less burdensome alternatives" available to further thes
40
e
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." The FDA migh
42
t
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." This language woul
43
d
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." Justice Scalia, concurring, "share[s] Justice Stevens' aversio
47
n
toward paternalistic governmental policies that prevent men and women from hearing
facts that might not be good for them." Justice Thomas, in his concurring opinion,
48
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." In
50
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." Thus, for
52
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).
5 0 438 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 Sable, supra note 14, 492 U.S. at 126.
52 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. The Supreme Court vacated and remanded to the Fourth Circuit "fo
54
r
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. In
56
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 pre-
sent 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.5 A causal relationship between color advertising and minors' tobacco us
9
e
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.
5 9 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." The FD
64
A
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." It is unclear why the FDA considers tha
65
t
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.