Constitutionality of First Amendment Restrictions on Tobacco Advertising

David Vladeck’s First Amendment Testimony

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Constitutionality ofFirst Amendment Restrictions on Tobacco Advertising:
Summary and Memorandum

Summary

The tobacco industry has come to Capitol Hill proposing a Faustian bargain: if Congress wants tobacco companies to stop illegal efforts to induce children to smoke cigarettes and chew tobacco, then Congress must give the industry the limits on liability it covets. Congress should have no part of such a deal, and nothing in the First Amendment compels it to do so. The ad restrictions proposed by the FDA and pending bills are acceptable under the First Amendment and can be enacted without the industry’s consent.

  • Whether advertising restrictions survive constitutional review depends heavily on the facts, and the grim statistics on children and smoking create a compelling case for action. Each day 3,000 children under age 18 begin to smoke. That amounts to 1 million new under-age smokers each year. Over 80% of adult smokers started when they were children or adolescents; very few started after age 21. The intended targets of the industry’s $6 billion annual advertising budget are obvious.
  • As the FDA concluded, advertising often plays a pivotal role in an adolescent’s decision to use tobacco. The sophisticated marketing tactics used by the industry prey on this highly vulnerable population that, by and large, cannot fully appreciate the gravity of the health risks. The clearest evidence of this is the notorious R. J. Reynolds “Joe Camel” campaign, which featured a cartoon figure that appealed directly to children. In one study, 30% of 3-year olds and more than 90% of 6-year olds understood Joe Camel was a symbol for smoking. RJR itself has explicitly stated that “if our Company is to survive and prosper . . . we must get our share of the youth market.”
  • Commercial speech cases are evaluated under what is called the “Central Hudson” analysis, which inquires: 1) whether the speech concerns a lawful activity or is misleading; 2) whether the government’s interest in limiting the speech is substantial; 3) whether the limits directly advance the government’s interest; and 4) whether the legislation is no more extensive than necessary.
  • The First Amendment does not entitle tobacco companies to market their products to minors. Under Central Hudson, regulating the promotion of tobacco products is acceptable under the First Amendment for two fundamental reasons: first, the advertising restraints seek to prevent the tobacco industry from persisting in illegal efforts to market their products to minors; and second, the restraints are an eminently reasonable way of achieving Congress’ legitimate and compelling goal of reducing the number of children who begin using tobacco.
  • Some legislators have proposed that the industry be offered liability limits to get them to “consent” to advertising restrictions and thus avoid legal challenges. But this will not work. Any other companies adversely affected by the restrictions (like advertisers, billboard companies, etc.) would be free to challenge them. The notion that the ad regulations would go unchallenged is an illusion.

Public Citizen opposes giving the tobacco industry any limitations on its liability for its past or future wrongdoing. The issues of immunity and the First Amendment need not, and should not, be linked.


MEMORANDUM

To: Members of Congress and Their Staffs

From: Joan Mulhern, Staff Attorney, Public Citizen’s Congress Watch

David Vladeck, Director, Public Citizen Litigation Group

Date: March 6, 1998

Re: Constitutionality of First Amendment Restrictions on Tobacco Advertising

The tobacco industry is asserting that it is unconstitutional for Congress to restrict the advertising of tobacco products. Therefore, the companies say, in order to for tobacco advertising to be restricted, they must give their consent, which they will not do unless Congress gives them unprecedented special protection from their legal liability. This argument is without merit.

This memorandum explains why the provisions restricting the advertising and promotion of tobacco products being considered in pending legislation to implement the so-called “global tobacco settlement” pass muster under the First Amendment. In order to explain why that is the case, it is important first to understand the nature of the problem that the advertising restrictions are designed to address and the specific restraints that have been proposed. The memorandum then turns to an analysis of the “commercial speech” doctrine and an explanation of why the advertising restraints under consideration by Congress do not violate the First Amendment. Finally, the memorandum explains why the proposal to use consent decrees with the tobacco industry as a means of insulating advertising restrictions from judicial review will not work.(1)

I. Background

As discussed more fully below, 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 initially propelled the Food and Drug Administration (FDA) to propose advertising restrictions for tobacco products.

A. The Record on Tobacco Use By Minors

After perhaps the most extensive rulemaking in history, the FDA has 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 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. That amounts to 1 million new under-age smokers each year. Of the 3,000 children a day who become addicted to tobacco, no fewer than 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 start smoking after the age of 21. Thus, the FDA’s finding that tobacco use is a “pediatric decision” is beyond legitimate dispute.

The high numbers of new adolescent smokers each year demonstrates the weakness of existing law — which focuses on denying access to tobacco products to kids. It is illegal to sell cigarettes to minors in all 50 states. As a result of a number of federal enactments, every state has imposed additional access limitations (photo identification checks, requirements that tobacco products not be available on shelves, 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 sources.

Moreover, as the FDA concluded, advertising targeted to children often plays a pivotal role in an adolescent’s decision to use tobacco products. 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 health risks inherent in tobacco usage.

Were there any doubt beforehand, recently released industry documents confirm that the tobacco companies have long targeted the youth market. The most clear evidence of this is the notorious R.J. Reynolds “Joe Camel” campaign, which featured a cartoon figure that appealed directly to the youth market. Thirty percent of three-year olds and 90% of six-year olds understood that Joe Camel was a symbol for smoking. As a result of the Joe Camel campaign, Camels’ 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.”

B. FDA’s Rule on Tobacco Advertising

Confronted with substantial evidence of this sort, 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 tobacco companies from continuing to market to children. The FDA’s rule is highly complex, and the Federal Register notice setting forth the regulations and summarizing the supporting evidence runs nearly 1,000 pages. The key rules 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, which is still pending.

Many of the bills now pending in Congress seek to codify these FDA rules. As discussed below, no provisions of the FDA rule, and no provision in any of the major bills thus far introduced, would violate the First Amendment.

II. 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 — 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.

III. 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 their products to minors; and second, the restraints are an eminently reasonable way of achieving Congress’ legitimate, if not 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). The first and most basic reason why the advertising provisions pass muster under the First Amendment is because they are designed to bar the tobacco companies from continuing to illegally market their products to minors.

As noted above, most smokers are initiated into tobacco use 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. 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 — a fact confirmed by the industry’s own marketing documents. Tobacco ads need not say “Children, buy Camels” to propose an illegality, if it is clear from the circumstances that the ads are designed to persuade children.

No one would argue that the First Amendment disables government from prohibiting tobacco companies from placing billboards at the entrance to schools or playgrounds or color advertisements in the Weekly Reader, Sports Illustrated for Kids, or Seventeen magazine. Similarly, a reviewing court will see that the government’s effort here is directed towards interdicting a message that proposes an illegal transaction, and the advertising restraints will be upheld on this basis.

B. Applying The Remaining Central Hudson Factors, Tobacco Advertising May Be Restricted Without Violating the First Amendment

Even if a reviewing court were to find that tobacco advertising overcomes the first prong of the Central Hudson test, the proposed restraints would be upheld. Applying the remaining Central Hudson factors, a court would conclude that the advertising restrictions are 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 these advertising restraints are the 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 has concluded that limits on advertising will avert the addiction of between 25% and 50% 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). Nothing is more important to the health and well-being of our nation’s children than avoiding the ravages of tobacco addiction.

2. The Restraints Directly Further the Government’s Interests in Curbing Tobacco Use By Children. As noted above, the FDA, along with the National Academy of Sciences and the Institute of Medicine, has concluded that the tobacco industry’s advertising and promotion campaigns play a pivotal role in inducing many minors to try tobacco. 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, 2506 (1996).

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, Phillip Morris, RJR, and Brown & Williamson carefully mapped out advertising and promotional campaigns that targeted children as young as 12 and 14 years old. When evaluated in light of these records, 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.

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

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.

The proposed restraints meet this narrow tailoring test. As the Supreme Court has often stressed, the core purpose in protecting commercial speech is to ensure that consumers have access to 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, 770 (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. Nothing in the restraints limits the advertising of price, availability, product attributes, ingredients, and so forth to adults.

The FDA’s carefully crafted restraints, that form the basis of the legislative proposals, focus on those advertising techniques and modes of communication that have been shown to have a powerful effect on children, while, at the same time, leave ample means for industry to communicate with adults. In this respect, the targeted restrictions under consideration are fundamentally different from the sort of advertising restrictions invalidated by the 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 set aside a law that sought to deprive consumers of information relating to the alcohol content of beer. And in Virginia Pharmacy Board, the Court set aside a state law forbidding the advertising of the price of prescription medications. In each case, the Court invalidated laws that barred an advertiser from conveying important information to lawful consumers. That is a far cry from what the FDA did, and 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.

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, here the speech restraints are related solely to 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, here the government has tried all means short of speech-restraints to curb the alarming rise of tobacco use by children. For the past three decades, the government’s efforts have focused on restricting access to tobacco products by minors. But it has by now become clear that imposing access restrictions, without simultaneously attacking demand, is futile. Bluntly put, access restrictions 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.

IV. A “Deal” With The Industry Would Not Foreclose Challenges To Ad Restrictions

While we believe most if not all of the advertising restrictions proposed in various bills would survive First Amendment attack, those who support the tobacco deal have argued that they may not. Others argue that even if the restrictions could pass constitutional muster, it would take many years of litigation and delay which should be avoided. Their plan is to give the industry protection from its legal liability and in exchange the industry will sign consent decrees “voluntarily” promising not to challenge the restrictions.

The first and most glaring of the many flaws in the proposal to have the industry “consent” to advertising restrictions is that the decrees would be binding on signatories and no one else. Any other entity adversely affected by the decrees or related restrictions 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, come into court and challenge the decree collaterally.

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 adversely affected by the new regime — new entrants into the tobacco market, the manufacturers not covered by the consent decrees, advertising agencies, billboard companies, magazines, etc. — could seek to collaterally attack the decrees on First Amendment grounds, or perhaps bring its own suit to challenge the validity of the underlying legislation. These parties would clearly have standing to bring such challenges. 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); Craig v. Boren, 429 U.S. 190 (1976) (third party standing). Indeed, in every past case challenging the imposition of restrictions on tobacco advertising, the challenger was not a tobacco company, but a third party, and in each case the challenger had standing to proceed. See Packer Corp. v. Utah, 285 U.S. 105 (1932); Penn Advertising of Baltimore v. Mayor of Baltimore, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S. Ct. 1569 (1997); Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1972) (three-judge court), aff’d without opinion sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1992).

VII. Conclusion

At bottom, the industry’s plea for limitations on liability comes down to the bald proposition that, if Congress wants the industry to stop marketing to children, it has to 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.

David Vladeck’s recent testimony before the Senate Commerce Committee on the First Amendment implications of regulating the promotion of tobacco products is available at https://www.citizen.org/. For more information, call Joan Mulhern at (202) 546-4996.

Footnotes

1. Public Citizen’s Litigation Group has 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 handled 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). They also represented amici curiae in other key commercial speech cases, 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.


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