Testimony - Regulating the Advertising and Promotion of Tobacco Products to Children and Adolescents
Mr. Chairman and members of the Committee, thank you for inviting me to testify before you today on the First Amendment implications of Congress regulating the advertising and promotion of tobacco products. As I will explain in detail below, nothing in the First Amendment disarms Congress from imposing strict controls on tobacco advertising and promotion to ensure that the industry stops marketing its products to our nation's children.(1)
The debate before Congress involves far more than abstract principles of constitutional law. The tobacco industry has come to Congress proposing a Faustian bargain: It says that, if Congress wants the tobacco industry to stop its illegal efforts to induce our children to smoke cigarettes and chew tobacco, then Congress has to give the industry the limits on liability it covets. Congress should have no part of that deal.
Public Citizen opposes giving the tobacco industry any limitations on its liability for its past or future wrongdoing. Indeed, we are awaiting the day that this industry is finally brought to justice. But immunity from civil liability and First Amendment issues need not, and should not, be linked.
Moreover, the industry's proposal rests on two flawed premises: first, that without the industry's consent, the First Amendment bars Congress from enacting restrictions on tobacco advertising to ensure that the industry ceases its illegal practice of promoting its products to minors; and second, that the industry's consent would immunize advertising restraints from legal challenge. Each of these premises is refuted below.
My testimony will show that Congress has considerable power to enact legislation to prevent the tobacco industry from selling cigarettes and chewing tobacco to minors: Only if Congress strays from that purpose does it run the risk of transgressing the First Amendment. I will also explain that, even if tobacco manufacturers "consent" to advertising restrictions, the restraints would still be subject to challenge by entities that currently benefit from tobacco advertising, and may even be vulnerable to challenge by the tobacco manufacturers themselves under the "unconstitutional conditions" doctrine. In sum, the consent decree approach advocated by the industry is both unnecessary and unworkable. Congress should reject industry's proposal and instead adopt effective and enforceable legislation that stops, once and for all, the tobacco industry from peddling its deadly products to our children.
Whether restrictions on advertising and promotion survive constitutional review depends heavily on the context giving rise to the imposition of those restrictions. Thus, it is important to briefly review the facts that led the Food and Drug Administration (FDA) to promulgate advertising restrictions for tobacco products.
A. The Record
After perhaps the most extensive rulemaking in history, the FDA compiled a record -- including nearly 50,000 pages of submissions from the tobacco industry -- that conclusively shows that death and disease from addiction to tobacco products can best be eliminated by stopping the cycle of tobacco addiction before it starts. That means reducing the number of children and adolescents who begin to use tobacco products.
The statistics are grim. According to the FDA, each day 3,000 children under the age of 18 begin to smoke regularly; the average new smoker is barely 13 years old. That amounts to 1 million new under-age smokers each year. Of the 3,000 children a day who become addicted to tobacco, at least 1,000 will die prematurely as a result of tobacco use. Well over 80% of adult smokers started when they were children or adolescents; very few people begin smoking after the age of 21. Thus, the FDA's finding that tobacco use is a "pediatric decision" is beyond legitimate dispute.
The substantial numbers of new adolescent smokers each year demonstrates the weakness of existing laws, which focus on the supply side of the smoking dynamic by denying kids access to tobacco products. It is illegal to sell cigarettes to minors in all 50 states. As a result of a number of federal enactments, including the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act of 1992, 42 U.S.C. ? 300x-26, every state has imposed additional access limitations (photo identification checks, requirements that tobacco products not be available on shelves, restrictions on vending machines, etc.) designed to keep tobacco away from children. Despite substantial efforts to bar access to tobacco by young people, minors nonetheless manage to obtain cigarettes and smokeless tobacco products from a variety of illicit sources.
The problem, as the FDA concluded, is on the demand side of the smoking equation. Advertising targeted to children often plays a pivotal role in an adolescent's decision to use tobacco products. The tobacco industry currently spends over $6 billion a year to advertise and promote its products; much of that activity, the FDA concluded, is directed at the youth market, which includes children under the age of 18. The sophisticated marketing tactics used by the tobacco industry prey on this highly vulnerable population that, by and large, is not capable of fully appreciating the gravity of the risk of addiction and the long-term health risks inherent in tobacco usage.
Were there any doubt beforehand, recently released industry documents confirm that tobacco companies have long targeted the youth market. The clearest evidence of this is RJR's notorious "Joe Camel" campaign, which featured a cartoon figure that appealed directly to very young children. Thirty percent of three-year olds and more than 90% of six-year olds understood that Joe Camel was a symbol for smoking. As a result of the Joe Camel campaign, Camel's share of the youth market increased from less than 3% to more than 13% in barely four years. RJR records explicitly state that "if our Company is to survive and prosper, over the long-term, we must get our share of the youth market." Another document recites that "[e]vidence now available . . . indicate[s] that the 14 to 18 year old group is an increasing segment of the smoking population. RJR must soon establish a successful new brand in this market if our position in the industry is to be maintained." And Philip Morris documents speak of targeting children as young as 12.(2)
B. FDA's Rule
Confronted with this evidence and much more, the FDA concluded that tobacco advertising has a powerful impact on children and that the pervasiveness and imagery used in tobacco advertising erodes the ability of adolescents to understand the significance of the health risks and the strength of the addictive power of tobacco products.
Accordingly, in its final rule published in August, 1996, the FDA established a number of restrictions aimed at preventing the tobacco companies from continuing to market to children. The FDA's rule is complex, and the Federal Register notice setting forth the regulations and summarizing the supporting evidence runs nearly 1,000 pages. The key rules governing advertising and promotion are those:
* requiring black and white, text-only advertising format except in adult publications;
* banning outdoor advertising of tobacco products within 1,000 feet of schools and playgrounds;
* prohibiting tobacco companies from distributing items such as hats and tee-shirts bearing brand names or logos; and
* forbidding companies from sponsoring athletic events in tobacco brand names.
The FDA regulations are not currently in effect due to litigation initiated by the tobacco industry. That litigation is still pending.(3)
Many of the bills that have been introduced in the Senate seek to codify the FDA rules, and, in some cases, would impose even more stringent restraints. As discussed below, no provision of the FDA rule violates the First Amendment. Congress surely has the power to enact legislation that embraces the FDA's approach and even goes further in some respects, provided that Congress carefully crafts its restraints to prevent the tobacco industry from marketing its products to minors. Only if Congress strays from that purpose does it risk running afoul of the First Amendment.(4)
2. General First Amendment Principles.
The "commercial speech" doctrine is a relative newcomer to constitutional jurisprudence. As recently as the early 1970s, the law was quite clear that the First Amendment did not protect commercial speech. It was not until the Supreme Court's landmark ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), that the Court first held that commercial speech -- that is, speech that proposes a commercial transaction -- is entitled to some degree of First Amendment protection, albeit significantly less protection than core political speech.
Since 1980, every commercial speech case has been evaluated under what has come to be called the "Central Hudson" analysis, named after Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 563-64, 566 (1980). That test inquires:
* first, whether the speech concerns a lawful activity or is misleading;
* second; whether the government's asserted interest in regulating speech is substantial;
* third, whether the restraint directly advances the government's interest; and
* fourth, whether the legislation is no more extensive than necessary to serve the government's interest.
In more recent cases, the Court has explained that the last two steps of the Central Hudson analysis involve a consideration of the fit between the legislature's ends and the means chosen to achieve those ends. The fit need "not be perfect, but simply reasonable." See Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).
In measuring the reasonableness of the fit, the Court looks to danger signals of overreaching: Is the government using a blanket to suppress speech where a handkerchief would suffice? Has government jumped the gun by regulating speech where obvious non-speech-regulating alternatives exist? If the answer to those questions is "no," then the restraints ordinarily are upheld.
3. The First Amendment Does Not Entitle The Tobacco Companies To Market Their Products To Minors.
Under the Central Hudson analysis, regulating the advertising and promotion of tobacco products is acceptable under the First Amendment for two fundamental reasons: first, the restraints seek to prevent the tobacco industry from persisting in illegal efforts to market to minors; and second, the restraints are a reasonable way of achieving Congress' legitimate, indeed compelling, goal of reducing the number of children who begin using tobacco.
A. Tobacco Advertising Can Be Strictly Regulated Because It Relates To An Illegality -- Selling Tobacco Products To Minors.
The First Amendment does not protect commercial speech that proposes or is related to an illegal transaction. Florida Bar v. Went for It, Inc., 115 S. Ct. 2371, 2375 (1995); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 388 (1973). Thus, the first and most basic reason why advertising restrictions of the sort designed by the FDA pass muster under the First Amendment is because they bar tobacco companies from continuing illegally to market their products to minors.
As noted above, most smokers begin using tobacco as children and become addicted as children, although selling tobacco products to minors is illegal. On the other hand, non-smoking adults rarely take up tobacco use. Today, we no longer have to base our case for advertising restrictions on the effect of the industry's ads. The industry's own documents show that the companies deliberately targeted their marketing campaigns to children, spending billions of dollars each year to hook new under-age smokers. Because of these facts, a reviewing court would understand that, as a matter of necessity, much of the industry's advertising and promotion is geared toward minors.
Moreover, even the tobacco companies do not argue that the First Amendment entitles them to promote tobacco products directly to children and adolescents. Thus, for example, no one would argue that the First Amendment permits tobacco companies to place billboards at the entrance to schools or playgrounds or color-laden, cartoon-filled advertisements in the Weekly Reader, Sports Illustrated for Kids, or Seventeen magazine. The government has every right to shield children from tobacco industry messages urging them to engage in illegal transactions.(5)
That is what the FDA tried to do, and what Congress is considering doing, namely, imposing restraints that prevent the industry from continuing to market to minors. Each of the restraints crafted by the FDA seeks to insulate children from being bombarded with selling messages by tobacco companies; industry's lines of communication with adults would remain open.
The government's right to impose speech restraints to ensure that a seller does not direct a message at a forbidden audience was most recently affirmed in United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). There, the Supreme Court upheld the constitutionality of a federal law forbidding broadcasters located in non-lottery states from broadcasting lottery information, even where the vast majority of the broadcaster's listeners reside in an adjacent lottery state. The Court reasoned that the statute was essential to enforce the policy goals set by the non-lottery state. Edge makes it clear that the Court will enforce speech restrictions aimed at ensuring that the law is faithfully obeyed, even if the restrictions impede more speech than is strictly necessary.(6)
The logic of Edge applies with full force here. Every state has said that selling tobacco products to minors is illegal. So long as the tobacco industry pumps $6 billion annually into promoting demand -- and directs much of that spending towards minors -- that policy cannot possibly be enforced, no matter how energetically states clamp down on supply. Because a reviewing court would understand that these restraints are aimed at forbidding an illegal transaction, they would be upheld.
B. Applying The Remaining Central Hudson Factors, Tobacco Advertising May Be Restricted Without Violating the First Amendment
Even if a reviewing court somehow concluded that tobacco advertising survives the first prong of the Central Hudson test, the court would still uphold reasonable restraints. Applying the remaining Central Hudson factors, a court would sustain restrictions on tobacco advertising so long as they were carefully tailored to the government's legitimate, indeed overwhelming, interest in reducing the incidence of tobacco use among minors.
1. The Government's Interest Is Substantial. There can be little question about the substantiality of the government's interest in preventing the addiction of children to tobacco products. Indeed, the enormous benefits that would flow from imposing advertising restraints are industry's Achilles' heel. As noted above, every day, 3,000 more children get hooked on tobacco products -- 1,000,000 kids per year. The FDA's "conservative" estimate is that limits on advertising will avert the addiction of at least 25% of the children at risk. Preventing the addiction of 250,000 youngsters or more each year is surely a governmental interest of the highest order. No court will want to sacrifice the most important public health initiative in history -- dwarfing the inoculation programs of the 1950s and 60s, for example -- on the altar of the tobacco industry's commercial speech rights.
Indeed, the Court has often held that protecting children from harmful messages "is an extremely important justification" for imposing restraints. Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374, 2392 (1996); New York v. Ferber, 458 U.S. 747, 756-57 (1982). It is hard to imagine that anything is more important to the health and well-being of our nation's children than avoiding the ravages of tobacco addiction.(7)
2. The Restraints Directly Further the Government's Interests in Curbing Tobacco Use By Children. As noted above, the FDA has concluded that the tobacco industry's advertising and promotion campaigns play a pivotal role in inducing many minors to try tobacco. Prestigious scientific institutions like the National Academy of Sciences and the Institute of Medicine concur. Moreover, as a matter of common sense, industry spends $6 billion annually to drive up demand for its product because it is convinced that the advertising stimulates consumption. In many cases, the Supreme Court has recognized the "common sense" link between advertising and demand. E.g., Central Hudson, 447 U.S. at 569; 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1506 (1996). And that link makes even more sense in the tobacco industry, which is highly concentrated (only three companies control more than 90% of the market) and which reflects considerable brand loyalty.
Were there any doubt about this point in 1996 when the FDA issued its final rule, it has been dispelled by the recent disclosures of long-secret tobacco company marketing plans. These documents demonstrate that each of the major tobacco companies, Philip Morris, RJR, and Brown & Williamson, carefully mapped out advertising and promotional campaigns that targeted children as young as 14 years old. See n.2 supra.
Once again, RJR's Joe Camel campaign is powerful evidence that marketing tobacco products to children is enormously effective. Prior to the Joe Camel campaign, Camel had a tiny, under 3% market share of the "youth market" -- apparently defined by RJR as 24 year olds and younger. After only four years of Joe Camel, Camel's market share skyrocketed to over 13%, a more than four-fold increase. During that time period (1988-1992), youth smoking rates rose as well, attesting to Joe Camel's success in inducing kids to take up smoking. When evaluated in light of this and other evidence, it is hard to imagine any court second-guessing the Congress' judgment that advertising restrictions are essential to compel the industry to stop marketing to children.(8)
3. The Restraints Are No More Extensive Than Necessary. At the outset, it is important to understand that, in the realm of commercial speech, the test of whether a regulation goes too far is not an exacting one. Precision of regulation may be the touchstone when government seeks to restrain core, political speech. But where restraints on commercial speech are concerned, the Supreme Court requires that legislative judgments "need not be perfect, but reasonable." Within those bounds, the Court notes, "we leave it to governmental decisionmakers to judge what manner of regulation may best be employed." Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). A regulation of commercial speech will be set aside only when it burdens substantially more speech than necessary, that is, if a blanket is employed when a handkerchief would do. See n.6 supra.
The proposed restraints meet this narrow-tailoring test. As the Supreme Court has often stressed, commercial speech merits protection because consumers need information about the price and availability of goods and services. Virginia Pharmacy Bd., 425 U.S. at 765. But nothing in the First Amendment forbids the government from ensuring "that the stream of commercial information flow[s] cleanly as well as freely." Edenfield v. Fane, 507 U.S. 761, 570 (1993)(citations omitted). That observation has substantial force here, since the proposed restraints would have little impact on the information that may be carried in tobacco ads. Given that tobacco advertising is notoriously based on image, not information, that may be of little solace to industry. Nonetheless, nothing in the restraints limits the advertising of price, availability, product attributes, ingredients, and so forth to adults.
Moreover, the targeted restrictions under consideration here are fundamentally different from the sort of advertising prohibitions invalidated by the Supreme Court in other cases. For instance, in 44 Liquormart the Court set aside a state law that prohibited liquor advertisers from providing consumers information about the price of their products. In Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1592 (1995), the Court struck down a law that sought to deprive consumers of information relating to the alcohol content of beer. And in Virginia Pharmacy Board, the Court invalidated a state law forbidding the advertising of the price of prescription medications. In each case, the Court set aside laws that barred an advertiser from conveying important information to lawful consumers. That is a far cry from what Congress is considering doing -- namely, preventing tobacco companies from continuing to hawk their products to young people who are barred by law from purchasing them.(9)
Nor is there any merit to the suggestion that the government must continue to pursue non-speech regulation to the exclusion of advertising restraints, where advertising directed at children is concerned. To be sure, the First Amendment generally requires government to exhaust non-speech means of addressing a problem before it resorts to restraints on speech. But that doctrine is inapplicable here for two reasons.
First, the speech restraints at issue here protect children. Nothing in the First Amendment compels the government to stand idly by while an industry breaks the law by targeting its advertising efforts on minors who cannot lawfully purchase their products.
Second, the government has for three decades tried means other than speech-restraints to curb the alarming rise of tobacco use by children. Since the mid-1960s, the government's efforts have focused on restricting the supply of tobacco products to minors and warning consumers about the health risks associated with tobacco use. But it has by now become clear that imposing access restrictions, without simultaneously attacking demand, is futile. Bluntly put, restrictions on supply can never be effective so long as industry is permitted to spend much of its $6 billion a year promoting its products to children. For this reason as well, restraints on tobacco advertising pass muster under the First Amendment.
Finally, the fact that some of the pending bills propose to go beyond the FDA rules to ban certain modes of expression -- outdoor advertising, for example -- does not mean that the restraints are overly broad. Of all of the proposals under consideration by Congress, the one that has drawn the most intense fire is the proposed ban on all outdoor advertising by the tobacco industry.
To understand why even this broad prohibition would be upheld, it is important to review briefly the "captive audience" doctrine. The Supreme Court in Lehman v. Shaker Heights, 418 U.S. 298 (1974), held that a municipality could decline to run political ads in city buses on the theory that the bus riders were a "captive audience," unable to avoid viewing messages with which they disagreed or felt were inappropriate.
The child who confronts the blizzard of billboards, fliers on buses, wall posters, store signs, and so forth, all urging them to smoke cigarettes or chew tobacco while walking or riding to school or to the playground is no less a captive viewer than the bus rider in Lehman. These ads are ubiquitous. The tobacco industry has saturated the market with very powerful selling messages, yet viewing children exercise "no choice or volition" in observing these ads. Instead, they have the messages "thrust upon them." Because of the invasiveness of fixed public advertising -- particularly billboards -- and the aesthetic blight that such advertising inflicts, the Court has always granted the government broad leeway in regulating it, which is yet another factor that would weigh in the government's favor here.
The Court addressed this very issue over sixty years ago in Packer Corporation v. Utah, 285 U.S. 105 (1932). Packer involved an equal protection challenge to a Utah statute making it a crime to display tobacco advertising on billboards, street cars, or other publicly visible locations. In upholding the statute, Justice Brandeis, writing for a unanimous Court, observed that the ban was part of the state's effort to "prevent the use of tobacco by minors." In responding to the contention that the statute was arbitrary because it permitted tobacco advertising in newspapers and magazines, Justice Brandeis noted that, in contrast to "[o]ther forms of advertising [that] are ordinarily seen as a matter of choice," outdoor advertisements "are constantly before the eyes of observers on the streets . . . to be seen without the exercise of choice or volition on their part."
To be sure, Packer long pre-dated the commercial speech doctrine. But the doctrine developed in Packer -- namely, that because outdoor advertising forces its messages on involuntary viewers, including children, it can be strictly regulated by the government -- was cited approvingly in Lehman, which involved the heightened review of the pure speech case, not the intermediate review that is applied in cases involving commercial speech.
Lower federal courts have invoked the Lehman-Packer doctrine to uphold sweeping restrictions on outdoor ads for both tobacco and liquor products. The United States Court of Appeals for the Fourth Circuit recently upheld a Baltimore municipal ordinance banning outdoor tobacco and liquor ads, and the Supreme Court denied review. Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997). Not only did the appellate court recognize that children are captive viewers of a marketplace packed with selling messages, but also that these messages, when directed at children, are illegal. The ban was justified, the court observed, because the sale of these products to minors "had already [been] banned directly and forthrightly through legislation." Anheuser-Busch makes evident that the captive doctrine audience supports a wholesale ban on outdoor advertising by the tobacco industry, unless the advertising is placed in a manner that guaranteed it would be viewed only by adults.
The Supreme Court's decision in Florida Bar v. Went for It, Inc., 115 S. Ct. 2371 (1995), bolsters this conclusion. Florida Bar involved a First Amendment challenge to a court rule that prohibited lawyers from sending solicitation letters to accident victims and their families within thirty days of the accident. Just like a ban on outdoor advertising, the restraint at issue in Florida Bar placed off limits one mode of communication. Nonetheless, the Court upheld the restriction out of concern that allowing lawyer mailings in the immediate aftermath of an accident could invade the privacy of the victims and their families. The Court was confident, as well, that other channels of communication were available for injured Floridians to learn about the availability of legal representation. The teaching of Florida Bar applies here: Outdoor advertising can be barred because it is harmful to a significant segments of viewers -- children -- and because alternative channels of communication remain open. Thus, Florida Bar provides yet another basis on which courts are likely to sustain a ban on outdoor advertising of tobacco products.
* * *
At bottom, industry's plea for limitations on liability comes down to the bald proposition that, if Congress wants industry to stop marketing to children, it must give the industry the immunity it craves. Congress should not enter into this Faustian bargain, and nothing in the First Amendment compels it to do so.(10)
The remainder of this testimony explains why, even if the tobacco industry "consents" to advertising restraints, that consent would not, in fact, foreclose future litigation challenging the restraints on First Amendment grounds. New entrants to the tobacco market, of course, would not need to challenge consent decrees; they could attack the underlying legislation imposing restraints. Entities that currently benefit from tobacco advertising (such as billboard companies) might intervene to attack the decrees and bring litigation to invalidate the legislation. Even the tobacco industry itself may have an avenue to challenge the decrees, under the "unconstitutional conditions" doctrine. If any of these possible challenges were successful, Congress would be left without enforceable advertising restraints while industry would reap the benefits of immunity.(11)
A. A "Deal" With The Industry Would Not Foreclose Challenges By Entities Not Bound By The Consent Decrees.
The first and most glaring flaw in the proposal to have industry "consent" to advertising restrictions, and then sign consent decrees in the pending cases brought by state attorneys general, is that the decrees would be binding on signatories and no one else. Any other entity adversely affected by the decrees would be free to challenge them. Thus, the assurance that Congress is looking for that the advertising restraints would go unchallenged under the First Amendment is an illusion.
It is well-settled that, except for certain class actions, only parties are bound by a consent decree entered in litigation. Martin v. Wilks, 490 U.S. 755 (1989). Even those aware of the litigation and affected by the outcome have no obligation to participate. They are free to wait on the sideline, and then, if they are unhappy with the result, to come into court and challenge the decree collaterally. That is exactly what happened in Martin, where a group of white firefighters waited until after the city had entered into a consent decree with minority firefighters who claimed racial discrimination, and then sought to intervene to challenge the decree because they believed it was unfair to whites. The Supreme Court ruled that the white firefighters had not forfeited their right to challenge the decree by waiting, even though they were aware of the proceedings and could have intervened before the decree was entered. Thus, while the tobacco companies might be barred from challenging the decrees, that prohibition would extend no further.
As a consequence, the consent decrees, and any underlying legislation, would be open to constitutional attack by a plethora of potential plaintiffs. Any commercial entity that is adversely affected by the new regime -- a new entrant into the tobacco market, advertising agencies, billboard companies, magazines, periodicals, printers, etc. -- could seek to intervene to collaterally attack the decrees on First Amendment grounds, or perhaps bring its own suit to challenge the validity of the decrees and any underlying legislation. The requirements for intervention are not onerous. All that applicants for intervention need show is that they are adversely affected by the decree and that their interests in the litigation are not adequately represented by any of the existing parties. See Rule 24(b), Fed. R. Civ. P. Under Martin v. Wilks, a district court judge would have little alternative but to let these non-parties mount their First Amendment challenge.
It is no answer to say that these parties would lack "standing" because their injuries arise from the "consent" of the tobacco companies to limit their speech and not from a government mandate that violates the First Amendment. That simply is not the law. Standing doctrine under the First Amendment is especially broad to ensure that anyone affected by speech restraints may challenge them in court. See, e.g., Virginia Pharmacy Board, supra (First Amendment challenge may be brought by "listener" as well as speaker); Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) (newspaper may challenge closing of judicial proceeding); Airports Comm'rs v. Jews for Jesus, 482 U.S. 569 (1987) (broad standing under First Amendment "overbreadth" doctrine); Craig v. Boren, 429 U.S. 190 (1976) (third party standing). Nor is it certain that the tobacco industry would disavow an interest in shedding the terms of the consent decree if a collateral attack were brought. After all, the very existence of a consent decree suggests that, in its absence, the industry would continue to engage in the advertising practices forbidden by the decree. Moreover, the tobacco industry may well contend that its consent was not truly volitional and that, if the decree were overturned on constitutional grounds, the companies would reinstate their former advertising practices.
In sum, the notion that consent decrees would insulate advertising restraints from constitutional attack is in error; at the very least, it is fraught with uncertainty. We urge Congress not to travel down this path.
B. The "Unconstitutional Conditions" Doctrine May Allow The Tobacco Industry Itself To Challenge The Decrees
As a final matter, it is not inconceivable that the tobacco industry itself could sign the decrees and then challenge their constitutionality under the "unconstitutional conditions" doctrine. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1415 (1989). This doctrine dates back to Speiser v. Randall, 357 U.S. 513, 518-19 (1958), which involved a constitutional challenge to a state law providing a tax preference to veterans, if, but only if, they signed a loyalty oath disavowing any belief in overthrowing the government by violence or force, which the First Amendment gave them a right to refuse to do. The plaintiff argued, and the Supreme Court agreed, that the government was forbidden from coercing an unconstitutional act -- making him sign a loyalty oath -- by conditioning the waiver of his First Amendment rights on the receipt of a benefit to which he was otherwise entitled. A simple example illustrates this point: Congress could not say that registered voters are entitled to $10, but only if they do not vote.
The tobacco industry could well make this argument. It could claim that it was compelled to surrender its First Amendment rights in order to secure the benefits of limited liability -- benefits Congress dangled in front of the industry to coerce it to waive its First Amendment rights. Although we do not believe that this argument has merit because we disagree that industry's First Amendment rights are at stake, the argument is not so dissimilar from the one accepted in Speiser to be summarily dismissed. Moreover, we recognize that in more recent cases the Court has rejected claims that the government "coerces" the surrender of constitutional rights by offering a benefit that one can freely accept or reject. See Rust v. Sullivan, 500 U.S. 173 (1991); Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546 (1983). Nonetheless, because this argument presents a potential avenue of attack by the industry, I would urge Congress to consider carefully the possibility that this doctrine would be used by the tobacco industry to repudiate the consent decrees. At the very least, Congress should impose a "non-severability" provision, which would guarantee that industry would lose its immunity if a court were to find the advertising restraints unconstitutional.
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I would be happy to answer any questions that you might have. Thank you again for affording me the opportunity to appear before you today.
1. 1 Public Citizen is a national consumer advocacy organization with over 100,000 members. It has long fought for stricter regulation of the tobacco industry. Public Citizen's Litigation Group has also been in the forefront of challenging restrictions on commercial speech and has as much, if not more, expertise in this area of constitutional law than any other law firm in the nation. Public Citizen's lawyers brought Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763 (1976), the first Supreme Court case holding that commercial speech merits protection under the First Amendment, as well as Edenfield v. Fane, 507 U.S. 761 (1993), and Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), and many lower court cases. We also represented amici curiae in other key commercial speech cases before the Supreme Court, urging the Court to strike down the challenged restriction. See, e.g., Florida Bar v. Went for It, Inc., 115 S. Ct. 2371 (1995); Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995); Peel v. Attorney Registr'n and Disciplinary Comm'n, 496 U.S. 91 (1990). In addition, Litigation Group lawyers have broad expertise in constitutional law and have argued 40 cases in the United States Supreme Court.
2. 2 Among the many newspaper articles examining tobacco industry marketing practices are, Mintz and Torry, Internal J.R. Reynolds Documents Detail Cigarette Marketing Aimed At Children, The Washington Post, A1 (Jan. 15. 1998); Memos Highlight Importance of "Young Adult Smokers", The Washington Post, A18 (Jan. 15, 1998); Schwartz, Philip Morris Memos Detail Teen Habits, The Washington Post, A1 (Jan. 30, 1998).
3. 3 Public Citizen Litigation Group is counsel to 14 major public health, consumer, and educational organizations appearing as amici curiae in this litigation. These organizations include the American Cancer Society, the American Medical Association, the National Center for Tobacco-Free Kids, and the American Public Health Association.
4. 4 Given the number, diversity, and complexity of the bills that have thus far been introduced in the Senate, this testimony focuses on the broad concepts under consideration, using the FDA rule as a model, rather than the details of each bill. Public Citizen's lawyers would be happy to work with Committee staff shaping language that would pass constitutional muster as the Committee's work on this legislation proceeds.
5. 5 This rationale was adopted by the United States Court of Appeals for the Fourth Circuit in upholding the constitutionality of a municipal ordinance effectively banning all outdoor tobacco and liquor advertising. The court concluded that the ban did not violate the First Amendment rights of the tobacco and liquor industries because, having banned the sale of these products to minors, the City had every right to shield minors from selling messages relating to these products. Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997).
6. 6 To be sure, regulation of tobacco advertising to protect children will, to some degree, impair the flow of advertising to adults. As Edge makes clear, however, under the commercial speech doctrine some degree of imprecision and overinclusiveness is not only tolerated, but expected, because of the inherent difficulties in fine-tuning any regulation on expressive activities. The Court emphasized this point in Fox v. Board of Trustees, 492 U.S. 469, 479 (1989), observing that a regulation that extends only "marginally beyond what would adequately have served the government interest," will not be invalidated. Only when a regulation is "substantially excessive, disregarding far less restrictive and more precise means, will it be set aside." Id. Thus, while Congress may not regulate with a hatchet, it surely does not have to use a scalpel.
7. 7Reno v. ACLU, 117 S. Ct. 2329 (1997), the "internet" case, is not to the contrary. Reno addressed the question whether the government could insulate children from indecent, but not obscene, material accessible on the internet. Even though the statute was plainly vague and overbroad, the Supreme Court struggled with the case because of the understandable concern that children should not be exposed to "dirty" pictures on the internet. The case was not decided because the Court was unwilling to fence-off indecent material from children. In fact, had some technological means been available to keep children from stumbling onto sexually offensive material on the internet, the Court would likely have upheld a law mandating the use of that technology. That idea -- that the First Amendment does not bar the government from shielding children from harmful or inappropriate messages -- will shape the Court's view of tobacco advertising, namely, that it is something that should be kept from children if at all possible. Indeed, time and again the Supreme Court has held that it is permissible to shield listeners from messages that may not be lawfully directed at them. Zoning laws that forbid adult bookstores and movie theaters in or near residential areas have routinely been sustained under this rationale, as have laws forbidding sexually explicit or otherwise offensive programming from electronic media except during the late night hours.
8. 8 Recent academic studies fortify the conclusion that tobacco advertising stimulates demand by minors. See, e.g., Pierce, et al., Tobacco Industry Promotion of Cigarettes and Adolescent Smoking, 279(7) J.A.M.A. 511 (Feb. 18, 1998); King, et al., Adolescent Exposure to Cigarette Advertising in Magazines, 279(7) J.A.M.A. 516 (Feb. 18, 1998). It is also telling that, when industry sued to invalidate the FDA's rules, it mounted an intense challenge under the First Amendment but reserved contesting the FDA's finding that there is a correlation between advertising and consumption by minors to a later phase of the litigation. In my view, it is doubtful that industry would raise this argument in any forum in which it would be subject to discovery. As the recent studies and the disclosures of industry marketing documents make clear, industry strongly believed that advertising stimulated demand by children and adolescents, and went after that market aggressively -- a fact that industry's adversaries could prove up in court.
9. 9 Some commentators suggest that, by imposing speech-related restrictions on the tobacco industry, the government would be suppressing debate over the important public policy issues raised by the smoking controversy. That argument is off target for two reasons. First, it depends on the premise that tobacco is a "lawful product," which it decidedly is not when marketed to children. Cigarettes are not like bread and milk, available to all for a price. They are "illegal" products to millions of Americans, just like handguns, alcohol, and prescription medication. Thus, by labeling cigarettes a "lawful product" these commentators beg the hard question of how far First Amendment protection extends to products like tobacco, whose sale is carefully restricted by the government for important public health reasons. Second, nothing in the FDA rules or in the bills awaiting congressional consideration stifles public debate; the tobacco companies would retain ample means to voice their policy arguments through information ads, editorial pieces, and other ads that conveyed industry's view.
10. 10 We believe that Congress has the latitude under the First Amendment to impose more stringent restrictions on tobacco advertising than did the FDA, and we urge Congress to consider doing so. Indeed, as we understand the press accounts of the recently-settled Minnesota case, it appears that, as part of that settlement, the tobacco industry consented to a nation-wide ban on outdoor advertising. Nonetheless, we recognize that it would be prudent for Congress to use the FDA rule as a "fall-back" provision. In our view, there is little risk that courts would declare the modest FDA rule unconstitutional on First Amendment grounds. Therefore, Congress ought to explicitly codify the FDA rule and provide the FDA with clear authority to vigorously enforce its rule and to issue, if needed, additional rules to ensure that the tobacco companies cease their efforts to market their products to our children. .
11. 11 The only way to avoid that possible outcome is for Congress to explicitly provide that these provisions are non-severable. The statute should instruct the reviewing court that, if the advertising restrictions are struck down on constitutional or other grounds, any grant of immunity falls as well. Absent such an explicit directive by Congress, the courts may well apply the normal severability rule, which would mandate saving as much of the statute as possible from judicial invalidation.