One March 19, 2010 the FDA issued a broad set of regulations directly restricting tobacco companies’ ability to advertise and promote their products. The regulations were issued following President Obama’s signing of the Family Smoking Prevention and Tobacco Control Act last June, which granted the FDA extensive authority to create such regulations. The landmark legislation negates the Supreme Court’s 2000 ruling in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, which held that, despite the dangers inherent in tobacco use, the FDA did not have the authority to promulgate regulations relating to the use or advertising of tobacco products.
Should we be concerned with whether a tobacco company’s free speech rights are being violated in an attempt to protect individuals, particularly children, from the harm of smoking? Although it is easy to see the public health arguments that are behind these speech restrictions, it requires a more in-depth look in order to see the dangers that such expansive regulations impose on freedom of expression.
Although it does have economic incentives, commercial speech is, nonetheless, speech. The main argument in support of the extensive restrictions on tobacco advertising is that such advertising reaches minors. However, in ensuring that this speech does not reach minors, the government is simultaneously banning speech that is largely intended for adults.
Two tobacco companies who will be directly affected by the new regulations have already filed suit in federal court challenging the FDA regulations on First Amendment grounds. Although the case is expected to be appealed, a federal judge in Kentucky ruled that at least some elements of the regulations go beyond the government’s authority to regulate speech (among them a regulation that bans the use of color in text and graphics on tobacco product labels and advertising).
The government may restrict some forms of commercial speech, so long as the regulations advance a substantial governmental interest, however, the government’s powers to do so are not unfettered. By taking this paternalistic approach to tobacco regulation, the FDA and the federal government are not only impinging on freedom of expression, but are failing to trust individuals’ to make informed decisions for themselves. Rather than imposing wide and problematic restrictions upon commercial speech, why not counter tobacco advertisements with even more speech in the form of public awareness campaigns? This approach would allow people to be as informed as possible and to make the decision that is best for them – without having to implicate the First Amendment.
More information, including the text of the new regulations, can be found on the FDA’s website.