CRS Report for Congress
Received through the CRS Web
Tobacco Marketing and Advertising Restrictions
in S. 1415, 105th Congress:
First Amendment Issues
May 15, 1998
American Law Division
Congressional Research Service ˜ The Library of Congress
Sections 122-123 of S. 1415, 105th Congress, would prohibit, among other things,
outdoor tobacco advertising on billboards, tobacco advertising with human or animal images
or cartoon characters, and most tobacco advertising on the Internet. Although the First
Amendment provides only limited protection to commercial speech, S. 1415's marketing and
advertising restrictions, to the extent that they deny adults access to tobacco advertising more
than is necessary to protect children, may be unconstitutional.
Tobacco Marketing and Advertising Restrictions in S. 1415,
105th Congress: First Amendment Issues
This report considers whether the restrictions on tobacco marketing and
advertising in §§ 122-123 of S. 1415, 105th Congress, as reported by the Senate
Committee on Commerce, would, in general, violate the First Amendment’s guarantee
of freedom of speech. These sections would prohibit, among others, the following
forms of tobacco advertising and labeling: (1) advertising or labeling with a human or
animal image or cartoon character, (2) outdoor advertising, including advertising in
enclosed stadia, (3) advertising without a disclaimer that words such as "light" or
"low tar" describing the product do not render the product less hazardous than any
other tobacco product, (4) advertising or labeling not reviewed by the Secretary of
Health and Human Services before it is first used, (5) advertising on the Internet
"unless such advertising is designed to be inaccessible in or from the United States to
all individuals under the age of 18 years," and (6) advertising with other than black
text on white background except at locations where individuals under 18 are not
permitted and in publications whose readers under the age of 18 constitute 15 percent
or less of the total readership.
The First Amendment provides only limited protection to commercial speech,
such as tobacco advertising. The Supreme Court has prescribed the Central Hudson
test to determine the constitutionality of governmental restrictions of commercial
speech. This test requires that restrictions of non-misleading commercial speech
directly advance a substantial governmental interest in a manner that is not overbroad.
In 1996, in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court increased the
protection that the Central Hudson test guarantees to commercial speech, expressing
skepticism of “regulations that seek to keep people in the dark for what the
government perceives to be their own good.” One may apparently infer from this
decision that restrictions on truthful tobacco advertising that is not aimed at minors
may be unconstitutional.
Subsequent to 44 Liquormart, a federal court of appeals upheld a Baltimore
ordinance that prohibited tobacco advertisements on billboards, except in certain
commercially and industrially zoned areas of the city. It reasoned that, although the
ordinance reduced the opportunities for adults to receive tobacco advertising, it did
not preclude them, and the ordinance constituted a reasonable way to attempt to limit
underage smoking. S. 1415's total ban on billboards with tobacco advertisements, by
contrast, would seem more likely to raise constitutional questions. Similar questions
may be raised with respect to other marketing and advertising restrictions, to the
extent that they deny adults access to tobacco advertising more than is necessary to
protect children. However, the fact that S. 1415's restrictions would not be as
encompassing as the restrictions on price advertising that the Supreme Court struck
down in 44 Liquormart, and would allow some tobacco advertising to continue, might
increase the likelihood of the restrictions' being upheld.
First Amendment Protection for Commercial Speech . . . . . . . . . . . . . . . . . 1
Applying Central Hudson: First Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Applying Central Hudson: Second Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Applying Central Hudson: Third Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Applying Central Hudson: Fourth Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Effect of 44 Liquormart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Analysis of S. 1415's Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tobacco Marketing and Advertising Restrictions
in S. 1415, 105th Congress:
First Amendment Issues
This report considers whether the restrictions on tobacco marketing and
advertising in §§ 122-123 of the Universal Tobacco Settlement Act, S. 1415, 105th
Congress, as reported May 1, 1998, by the Senate Committee on Commerce, would,
in general, violate the First Amendment’s guarantee of freedom of speech. Section
122 would prohibit, among others, the following forms of tobacco advertising and
labeling: (1) advertising or labeling with a human or animal image or cartoon
character, (2) outdoor advertising, including advertising in enclosed stadia, (3)
advertising without a disclaimer that words such as "light" or "low tar" describing the
product do not render the product less hazardous than any other tobacco product, (4)
advertising or labeling not reviewed by the Secretary of Health and Human Services
before it is first used, (5) advertising on the Internet "unless such advertising is
designed to be inaccessible in or from the United States to all individuals under the
age of 18 years," and (6) advertising with other than black text on white background
except at locations where individuals under 18 are not permitted and in publications
whose readers under the age of 18 constitute 15 percent or less of the total
Section 122 would also prohibit payments to be made to ensure that "a logo,
symbol, motto, selling message, recognizable color or pattern of colors, or any other
indicia of product identification" appear in a movie, program, or video game. It
would also, apparently inconsistently with respect to movies, prohibit payments "for
the purpose of promoting the image or use of the tobacco product through print or
film media that appeals to individuals under the age of 18 years or through a live
performance by an entertainment artist that appeals to such individuals." Section 122
would also prohibit "a logo, symbol, motto, selling message, recognizable color or
pattern of colors, or any other indicia . . . identifiable with a tobacco product" to be
"used for any item (other than a tobacco product) . . . marketed, licensed, distributed,
or sold by the tobacco product manufacturer or distributor of the tobacco product."
Section 123 would limit the size and placement of, and prohibit color in, pointof-sale advertising at any location in which an individual under 18 years of age is
First Amendment Protection for 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. . . .” Despite
its absolute language, 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
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.”2 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.”3 In Board of Trustees of the State University of New York v.
Fox, the Supreme Court made it easier for the government to satisfy the fourth prong
of the Central Hudson test. It held that the fourth prong is not to be interpreted
“strictly” to require the legislature to use the least restrictive means available to
accomplish its purpose.4 Instead, the Court held, legislation regulating commercial
speech is to be upheld if there is a “‘fit’ between the legislature’s ends and the means
chosen to accomplish those ends,” — “a fit that is not necessarily perfect, but
reasonable . . . .”5 The Court, however, does “not equate this test with the less
rigorous obstacles of rational basis review.”6 In other words, although, to satisfy the
fourth prong, a restriction on commercial speech need not constitute the least
restrictive means to advance the asserted governmental interest, it must be more than
In 1996, in 44 Liquormart, Inc. v. Rhode Island, the Supreme Court increased
the protection that the Central Hudson test guarantees to commercial speech by
indicating that “when a State entirely prohibits the dissemination of truthful,
nonmisleading commercial messages for reasons unrelated to the preservation of a fair
Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989)
(emphasis in original).
Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
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., 515 U.S. 618 (1995), the Court referred
to the Central Hudson test as having three parts, and referred to its second, third, and fourth
prongs as, respectively, the 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.
Fox, supra note 1, at 476.
Id. at 480.
Florida Bar v. Went For It, Inc., supra note 3, at 632.
bargaining process,” the restriction will be subject to a stricter review by the courts
than a regulation designed “to protect consumers from misleading, deceptive, or
aggressive sales practices.”7 The prohibition in 44 Liquormart was on advertising the
price of alcoholic beverages, not on all advertising of alcoholic beverages. Therefore,
when the Court referred to “entirely” prohibiting the dissemination of truthful,
nonmisleading commercial messages, it apparently included entirely prohibiting the
dissemination of any particular item of truthful, nonmisleading information.
We will now discuss the application of each of the four prongs of the Central
Hudson test to §§ 122-123, considering their provisions in general, rather than
considering each of their restrictions on tobacco advertising separately. Then we will
consider whether 44 Liquormart affects our general conclusion. Finally we will
consider the constitutionality of some of the specific restrictions.
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. 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.8 We will assume that the advertisements concern a lawful activity
because some of the restrictions in §§ 122-123 would affect tobacco advertisements
aimed at adults as well as at minors.
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.”9 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 S. 1415 would satisfy the second
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.
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.
478 U.S. 328, 341 (1986).
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).10 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.”11
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,12 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,13 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.”14
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.’”15
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.16 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
Id. at 341-342.
Id. at 342, citing Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981).
507 U.S. 761 (1993).
436 U.S. 447 (1978).
Edenfield, supra note 12, at 775.
512 U.S. 136, 143 (1994).
514 U.S. 476 (1995).
Government’s regulatory scheme.”17 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.”18 “[T]he State’s own showing,” the Court wrote, “reveals
that any connection between the ban and a significant change in alcohol consumption
would be purely fortuitous. . . . [A]ny conclusion that elimination of the ban 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.”19
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.20 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,”21 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.”22
When the Food and Drug Administration promulgated tobacco advertising
restrictions, it 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.”23 If this is true, then the advertising
restrictions would, in general, apparently satisfy the third prong of the Central
Hudson test. Of course, it is possible for a court to find some of the restrictions in S.
1415 constitutional but others unconstitutional.
Id. at 488.
116 S. Ct. at 1509.
Id. at 1510.
Florida Bar, supra note 3.
Id., 515 U.S. at 624.
Id. at 627.
61 Fed. Reg. 44,474 (1996). These regulations have not taken effect because a federal
court held that the FDA lacked the statutory authority to implement them. Coyne Beahm, Inc.
v. United States, 958 F. Supp. 1060 (M.D. N.C. 1997).
The FDA, in connection with its regulations, wrote: “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.”24 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.
In sum, it appears likely that the restrictions in S. 1415 would satisfy the third
prong if the government can present evidence that they will reduce the demand for
tobacco and thereby reduce the incidence of tobacco-related illnesses.
Applying Central Hudson: Fourth Prong
We now turn to the fourth and final requirement of the Central Hudson test —
that restrictions on commercial speech represent a reasonable “fit” between the
legislature’s ends and the means chosen to accomplish those ends. As noted above,
this prong requires that a restriction be more than merely rational, but not necessarily
the least restrictive means to advance the asserted governmental interest.25 In
Cincinnati v. Discovery Network, Inc., the Supreme Court struck down a Cincinnati
regulation that banned newsracks on public property if they distributed commercial
publications, but not if they distributed news publications.26 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.”27 The city, therefore,
did not establish “the ‘fit’ between its goals and its chosen means that is required by
our opinion in Fox.”28
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
either by direct regulation or by increased taxation. . . . Even educational campaigns
. . . might prove to be more effective.”29
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
See, text accompanying note 6, supra.
507 U.S. 410 (1993)
Id. at 424 (emphasis in original).
Id. at 428.
44 Liquormart, supra note 7, 116 S. Ct. at 1510.
thought-out. S. 1415, in general, does not appear similar in this respect. However,
the reasonableness of its restrictions must be considered individually, which we do
after we consider the effect of 44 Liquormart.
Effect 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 from
misleading, deceptive, or aggressive sales practices.”30 Sections 122-123, like the
speech restriction struck down in 44 Liquormart, appears primarily intended to reduce
consumption of a dangerous product rather than to protect consumers from unfair
sales practices.31 Sections 122-123, however, unlike the speech restriction struck
down in 44 Liquormart, would not impose a total prohibition on any information
sought to be advertised.
In addition, the fact that §§ 122-123 are in part intended to protect minors may
help to distinguish it from the Rhode Island statute. 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.32
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.”33 Justice Scalia, concurring, indicated that he “share[s] Justice
Stevens’ aversion toward paternalistic governmental policies that prevent men and
women from hearing facts that might not be good for them.”34 Justice Thomas, in his
Id. at 1507, quoted in the text accompanying note 7, supra.
The FDA argued that its restrictions were 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.”
61 Fed. Reg. 44,470. It would seem to strengthen the FDA’s case in this regard if we read
this instead to mean that minors are not competent to resist tobacco advertisements. This
argument would also seem available to S. 1415, but with less force because, though S. 1415
is intended to protect youth, its restrictions apply to more advertisements aimed at adults, and
so seem less designed to protect consumers from misleading, deceptive, or aggressive sales
practices. For example, the FDA’s restrictions would ban tobacco billboards within 1,000
feet of a school or playground, whereas S. 1415 would ban all outdoor tobacco billboards.
44 Liquormart, supra note 7, 116 S. Ct. at 1508.
Id. at 1510.
Id. at 1515 (Scalia, J., concurring).
concurring opinion, refers to “the antipaternalistic premises of the First
Nevertheless, §§ 122-123 would limit advertisements aimed at adults as well as
at children. In the context of “indecent” material, the Supreme Court has reiterated
that the government may not “reduce the adult population . . . to reading only what
is fit for children.”36 Thus, for example, indecent material may not be banned from the
airwaves for 24 hours a day,37 and adults’ access to indecent material on the Internet
may not be precluded in order to protect children, at least if less restrictive means to
protect children are available.38 This principle may not apply as forcefully to
governmental restrictions of commercial speech, however, as adults’ access to
indecent material, unlike to commercial speech, receives full First Amendment
protection. Nevertheless, the Justices’ discomfort with the paternalism they perceived
in the Rhode Island statute suggests that, even if a commercial speech restriction
aimed at public health might otherwise pass the Central Hudson test, it might not if
it unduly restricts adults’ access to truthful, nonmisleading commercial messages. At
the same time, the Rhode Island statute totally restricted liquor price advertising,
whereas S. 1415 would not totally restrict tobacco advertising, and this distinction
could make a difference in a court's decision as to the constitutionality of S. 1415.
Prior to 44 Liquormart, the U.S. Court of Appeals for the Fourth Circuit, in two
cases, upheld Baltimore ordinances that prohibited tobacco and alcohol
advertisements on billboards, except in certain commercially and industrially zoned
areas of the city.39 Then, after 44 Liquormart, the Supreme Court vacated and
remanded both cases “for further consideration in light of 44 Liquormart . . . .”
Id. at 1517 (Thomas, J., concurring).
Bolger v. Youngs Drug Products, Inc., 463 U.S. 63, 73 (1983); Sable, supra note 2, 492
U.S. at 128.
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).
Reno v. ACLU, 117 S. Ct. 2329 (1997). The Court wrote in that case:
In order to deny minors access to potentially harmful speech, the CDA
effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another. That
burden on adult speech is unacceptable if less restrictive alternatives
would be at least as effective in achieving the legitimate purpose that
the statute was enacted to serve. . . . As we have explained, the
Government may not “reduc[e] the adult population . . . to . . . only
what is fit for children.”
Id. at 2346. There is a tension between the second and third quoted sentences with which the
Court did not deal: if there are no less restrictive alternatives available, then may the
government reduce the adult population to only what is fit for children?
Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318
(4th Cir. 1995), vacated and remanded, 116 S. Ct. 2575 (1996); Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305 (4th Cir. 1995), vacated and remanded, 116 S. Ct. 1821 (1996).
Next, 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.40 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 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 our “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
The pertinent question, it seems, is whether the restrictions that S. 1415 would
impose would be more like those struck down in 44 Liquormart or those upheld in
the Fourth Circuit cases. Like the ordinances the Fourth Circuit upheld, S. 1415
would not impose a total ban on any information sought to be advertised. However,
S. 1415 would not focus as narrowly on advertisements accessible to children as did
the ordinances the Fourth Circuit upheld. It is not the case with S. 1415, as it was
with the Baltimore ordinances, that it would “not ban outdoor advertising of alcoholic
Penn Advertising v. Mayor and City Council of Baltimore, 101 F.3d 332 (4th Cir. 1996),
cert. denied, 117 S. Ct. 1569 (1997); Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir.
1996), cert. denied, 117 S. Ct. 1569 (1997).
101 F.3d at 327-329 (citations omitted).
beverages outright but merely restricts the time, place, and manner of such advertisements.” But, like Baltimore’s alcoholic beverage ordinance, it would not, except
with respect to the Internet, foreclose the “plethora” of other media on which tobacco
products may be advertised. At the same time, however, federal law already reduces
the size of this “plethora,” as it bans advertisements for cigarettes, little cigars, and
smokeless tobacco “on any medium of electronic communication subject to the
jurisdiction of the Federal Communications Commission.”42 This would be a factor
that could be cited to argue that S. 1415 would have a more restrictive effect on
adults than might appear from its face. In addition, S. 1415 would restrict the content
of advertisements in media in which it would continue to permit advertisements,
which is something the Baltimore ordinances do not do.
In conclusion, it appears that the degree of restrictiveness of S. 1415 would lie
somewhere between that of the provision struck down in 44 Liquormart and those
upheld in the Fourth Circuit cases. Some of the prohibitions of S. 1415 would seem
to include the sort of paternalism to which the Court objected in 44 Liquormart, but
others of its prohibitions seem more narrowly focused on protecting minors. We will
distinguish among these in the next section of this memorandum.
First, however, we offer a more general comment. The decision in 44
Liquormart might, on the one hand, be viewed as part of a trend on the Court’s part
to increase the First Amendment protection it accords to commercial speech. If this
is in fact a trend, then the likelihood of its striking down substantial portions of S.
1415 would increase. On the other hand, the Court in 44 Liquormart, as noted
above, seemed to view the Rhode Island statute in question as particularly poorly
thought-out, with the Court commenting “that any connection between the ban and
a significant change in alcohol consumption would be purely fortuitous,” and that “[i]t
is perfectly obvious that alternative forms of speech would be more likely to achieve
the State’s goal of promoting temperance.” Although S. 1415 would restrict more
speech than the Baltimore ordinances do, it does not appear poorly thought-out in the
manner that the Supreme Court seemed to think the Rhode Island statute in 44
Liquormart was. It is also possible that a stronger link can be demonstrated between
the restrictions in S. 1415 and "a significant change in [tobacco] consumption." But
now we must examine some of the restrictions in S. 1415 individually, as that is how
they will stand or fall.
Analysis of S. 1415's Restrictions
To do this necessitates applying the four prongs of the Central Hudson test.
However, we will take as a given that all the restrictions in S. 1415 would pass the
first prong, as tobacco advertising is legal and we will presume it is not misleading.
We will also assume that all the restrictions would pass the second prong, as
restricting tobacco advertising would serve the substantial governmental interest of
promoting public health. In addition, to the extent that the restrictions would reduce
children’s exposure to tobacco advertisements, we will assume that they would
directly and materially advance the governmental interest in reducing underage
smoking. The constitutionality of most of the restrictions, therefore, will apparently
15 U.S.C. §§ 1335, 4402.
turn on the fourth prong, which asks whether, for each restriction, there is a
reasonable “fit” between the government’s means and ends. The restriction must be
more than merely rational, but need not necessarily be the least restrictive means
The prohibition of outdoor advertising might be subject to challenge. If it were
limited, as the Baltimore ordinance is, to outdoor advertising within 1,000 feet of a
school or playground, then there would be a precedent for its constitutionality. The
restriction as it stands clearly would reduce children’s exposure to tobacco
advertising, so it would seem likely to satisfy the third prong of Central Hudson. But
it would also reduce adults' exposure to tobacco advertising, so the government
would apparently have to demonstrate that a restriction limited as the Baltimore
ordinance is would leave minors overly exposed to tobacco advertising, and would
not overly restrict adults’ access to tobacco advertising.
The prohibition of advertising in enclosed stadia may also be challenged,
because it does not exempt events or activities that children are unlikely to attend.
The government could advance its aim of protecting children without banning
advertisements at performances from which children are excluded because they are
X-rated (though, admittedly, such performances usually occur in theaters or bars
rather than in stadia). There are also performances from which children are not
excluded, but which relatively few children attend, such as classical music concerts
(other than those designed for children). If few children typically attend a particular
type of performance, then one might challenge this restriction on the ground that it
would not materially advance the governmental interest in protecting children, and
would therefore fail the third prong. Or one might challenge it on the ground that it
would unreasonably interfere with the rights of adults, and would therefore fail the
fourth prong. These arguments would apply on the assumption that the
advertisements in question could be easily taken up and down; if they were relatively
permanent, then there would be a stronger argument that banning them would be
The prohibition of advertising or labeling with a human or animal image or
cartoon character would seem to face similar problems. If the government could
present evidence that children respond particularly to human images and cartoon
characters, then this restriction would apparently be constitutional to the extent that
it would not overly restrict adults’ access to the proscribed pictures.43 It would,
however, apparently raise constitutional questions to the extent that it would apply
to material unavailable to children, and perhaps also to the extent that it would apply
to material with an intellectual content that would attract few minors.
The requirement of disclaimers that words such as "light" or "low tar" describing
the product do not render the product less hazardous than any other tobacco product,
as well as of other disclosures not noted in the summary of § 122 at the beginning of
this report, would apparently be constitutional. This is because the Supreme Court
Pictures as well as words are protected by the First Amendment. See, Manuel Enterprises
v. Day, 370 U.S. 478 (1962).
has held that an advertiser's "constitutionally protected interest in not providing any
particular factual information in his advertising is minimal."44
The requirement that advertising and labeling be reviewed by the Secretary of
HHS before it is first used would apparently be constitutional if it is designed solely
to enable the Secretary to advise the tobacco company as to whether the advertising
and labeling complies with the law, or to seek a court injunction against such
advertising if appropriate.
The prohibition of advertising on the Internet “unless such an advertisement is
inaccessible in or from the United States to all individuals under the age of 18" may
be problematic because the degree of censorship it would impose on adults might
cause a court to find that it does not represent a reasonable “fit” under Central
Hudson’s fourth prong. This provision would apparently, in effect, prohibit tobacco
advertising on the Internet except for the relatively small percentage of Web sites
available to adults only, by subscription only. As discussed above, the Supreme
Court, in Reno v. ACLU, held a comparable restriction on indecent material
unconstitutional, although the fact that indecent material receives a higher level of
First Amendment protection than commercial speech increases the possibility that the
Supreme Court would uphold this provision of S. 1415.45
The prohibition of advertising with other than black text on white background
except at locations where individuals under 18 are not permitted and in publications
whose readers under the age of 18 constitute 15 percent or less of the total readership
appears more likely to be found constitutional than some of the provisions that would
more greatly restrict advertising aimed at adults.
As noted, there appears to be an inconsistency in the provision that would
prohibit payments to be made to ensure that "a logo, symbol, motto, selling message,
recognizable color or pattern of colors, or any other indicia of product identification"
appear in a movie, program, or video game. Section 122(a)(2) prohibits such
payments outright, whereas section 122(a)(3) apparently prohibits them only in the
case of "print or film media that appeals to individuals under the age of 18 years or
through a live performance by an entertainment artist that appeals to such
individuals." Thus, the restriction on advertising in programs or video games would
not be limited to those that appeal to minors, while the restriction as to print media
and to live performances would be limited in that respect. (The word "programs"
presumably means television programs rather than printed programs that are
distributed at live performances, but this might be clarified.) However, the restriction
on advertising in "movies" would be restricted to those that appeal to minors, while
the restrictions as to "films" would not be, which seems inconsistent.
The above restrictions that are not limited to those that appeal to minors may be
subject to challenge on the ground that they unduly restrict adults' access to tobacco
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (emphasis in
See, text accompanying note 38, supra.
advertisements. Even those that are limited, however, may face challenge because of
the possible vagueness of the word "appeals."
The prohibition of "a logo, symbol, motto, selling message, recognizable color
or pattern of colors, or any other indicia . . . identifiable with a tobacco product" to
be used on non-tobacco products would restrict a particular form of tobacco
advertising. As such, it might raise constitutional questions because it would not be
limited to non-tobacco products to which minors are exposed to a significant degree.
Finally, section 123's limits on point-of-sale advertising at any location in which
an individual under 18 is permitted would seem constitutional because they are
directed to minors and do not totally restrict advertising aimed at adults.
In summary, it appears that the constitutionality of S. 1415's restrictions will
likely turn on whether they represent a reasonable "fit" between the government's
means and ends. In Reno v. ACLU, in striking down restrictions on indecent material,
the Supreme Court reiterated that the government may not "reduce the adult
population . . . to reading only what is fit for children." However, Reno v. ACLU did
not involve commercial speech, which receives less protection under the First
Amendment than other speech. Consequently, the courts might find that S. 1415's
restrictions, even though they would limit adults' access to tobacco advertising, would
represent a reasonable fit between the government's means and its end of reducing
underage smoking. The fact that S. 1415's restrictions would not be as encompassing
as the restrictions on liquor price advertising that the Supreme Court struck down in
44 Liquormart, and would allow some tobacco advertising to continue, might increase
the likelihood of the restrictions' being upheld. However, this is an area of
constitutional law about which it is difficult to make predictions.
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