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Bibliographic Citation
Smith, Michael E., Community Penalties: Change and Challenges. Community Penalties?. . Portland, OR: Willan Publishing, 2001. pgs.; HV9279 C643 2000
Abstract
The paper addresses the constitutionality of federal government efforts to restrict tobacco advertising and outlines suggestions for crafting federal legislation based on Central Hudson Gas & Electric Corporation v. Public Service Commission of New York. In that landmark decision, the U.S. Supreme Court outlined criteria for judging when and if various forms of commercial speech merit First Amendment protection. Tobacco advertising to youth does not qualify for First Amendment protection because it fails to meet the requirements of Central Hudson. The illegality of underage tobacco use provides Congress with a compelling reason to restrict advertising of tobacco products through comprehensive tobacco legislation. Regulation of tobacco advertising can be implemented through regulation, legislation and/or consent decrees. The paper supports the efficacy and constitutionality of the Food and Drug Administration (FDA) advertising regulations as well as the additional advertising and promotion restrictions in the Tobacco Settlement Agreement between the state Attorneys General and the tobacco industry representatives. Stress is placed on the importance of placing any restrictive language in statutory provisions rather than consent decrees to insure swift and certain action if provisions are violated. Congress should provide both the FDA and the Federal Trade Commission (FTC) with concurrent authority to exercise oversight regarding tobacco product marketmg that is similar to the rules and regulations that are used for other drugs and drug-delivery devices. Federal legislation should not preempt local governments. Advertising restrictions in federal law should serve as a "floor" rather than as a "ceiling," allowing localities to enact and enforce additional restrictions on tobacco advertising and marketing as long as those restrictions are legal and meet the test of constitutionality. While the authors believe reasonable restrictions on tobacco advertising and promotions are constitutional, a caution is raised that there may still be legal challenges on free speech grounds, particularly from advertising and tobacco-related entities that were not part of the Tobacco Settlement negotiations. Suits may be filed asserting First Amendment rights even if the tobacco companies voluntarily agree to forgo certain forms of advertising and promotion through a consent decree process. However, given the federal government's substantial interest in limiting tobacco advertising that reaches youth as detailed in Central Hudson, it is likely that the constitutionality of the proposed restrictions will be upheld by the courts.
