Most of new federal statutory restrictions on tobacco marketing do not violate the free speech rights of tobacco companies.
The Issue: The Family Smoking Prevention and Tobacco Control Act (FSPTCA) of 2009 placed new limitations on the marketing of tobacco products, particularly marketing that targets minors. The limitations include FDA pre-market review of any tobacco product claiming to impose lesser health risks, and large graphic warnings on packages of cigarettes and other tobacco products. A number of tobacco companies sued, claiming that the restrictions violate their right to free speech under the First Amendment.
Why It Matters: The overwhelming majority of smokers become addicted by age 18, before they fully understand the health consequences of smoking, and before they have developed the critical faculties to resist tobacco marketing. Nearly half of minors who become regular smokers will die prematurely from causes related to tobacco use. More than 400,000 people die every year in the United States from tobacco-related diseases. Therefore, measures making it more difficult for tobacco companies to market to minors, and ensuring that new potential smokers are aware of the dangers of smoking, are of paramount importance. More broadly, the tobacco industry’s challenge to the FSPTCA exemplifies a dangerous trend of businesses invoking the First Amendment, which was intended to protect individual liberty, in efforts to void any government action at all to protect consumers by regulating business conduct.
Public Good’s Contribution: Public Good authored a brief in the Sixth Circuit on behalf of the Tobacco Control Legal Consortium and other tobacco control advocates, arguing that no free speech rights are violated by the new tobacco marketing restrictions. Public Good’s brief laid out the 50-plus-year history of willful deception by tobacco companies about the health risks posed by their products, including the (nonexistent) health benefits of alternative versions of their products such as “light cigarettes.” As a result, because the First Amendment does not protect false or misleading “commercial speech,” tobacco companies’ advertising is entitled to far less constitutional protection than much other advertising, to say nothing of “non-commercial” speech such as political, religious or artistic statements.
Amici Represented by Public Good: Public Good’s brief was filed on behalf of the Tobacco Control Legal Consortium, the Roswell Park Cancer Institute, and Prof. Harry Lando of the University of Minnesota School of Public Health.
Outcome: The Sixth Circuit upheld most of the challenged restrictions, including the two briefed by Public Good: the requirement of large graphic warnings on the cigarette packages and other tobacco products, and a prohibition on claims – without prior FDA approval – that certain tobacco products reduced the harms or risks to health associated with tobacco use. The opinion adopted much of the reasoning of our brief, and relied heavily on the evidence presented in the brief of past deception by the tobacco industry. The tobacco companies have petitioned the U.S. Supreme Court for certiorari; the Court has not yet ruled on the petition.
Commonwealth Brands, Inc. v. United States, 678 F. Supp. 2d 512 (W.D. Ken. 2010), affirmed in part and reversed in part, Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012), and rehearing and rehearing en banc denied (May 31, 2012).