Two recent decisions of federal appellate courts have raised a question which has not been in the forefront of trade regulation law for more than a decade. That question, earlier raised in a narrower context during efforts to restrict advertising for the sale of cigarettes whether it is constitutionally permissible to prohibit advertising for a product which it is legal to sell. The issue today is being raised primarily in the context of advertising for alcoholic beverages. Increased legislative interest has been expressed about that topic in a number of states, reflecting growing concern about the effect of alcohol abuse on accident and death rates. As this article will note, it is true that advertising for a product which may be legally sold has some First Amendment protection, but it remains unclear whether alcohol, tobacco and'most important to business in general'perhaps other particularly "dangerous" or unusual products could constitutionally be restrained from advertising in any fashion absent a corresponding prohibition on sales of such products.
