Matt Shechtman, Smoking Out Big Tobacco: Can the Family Smoking Prevention and Tobacco Control Act Equip the Fda to Regulate Tobacco Without Infringing on the First Amendment?

• Publication year: 2011

SMOKING OUT BIG TOBACCO: CAN THE FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT EQUIP THE FDA TO REGULATE TOBACCO WITHOUT INFRINGING ON THE FIRST AMENDMENT?

ABSTRACT

Tobacco use is one of the most catastrophic public health issues facing the world today. The recently passed Family Smoking Prevention and Tobacco Control Act (FSPTCA) gives the United States Food and Drug Administration (FDA) unprecedented power to regulate tobacco products. While Congress has explicitly maintained the legality of tobacco distribution in the United States, the FDA's newfound regulatory authority under the FSPTCA is a necessary step to continue the fight against tobacco use. Among the most significant provisions of the FSPTCA are restrictions aimed at tobacco advertising and promotions. These provisions, however, may unconstitutionally infringe on First Amendment commercial speech under the judicially crafted commercial speech doctrine governed by Central Hudson Gas & Electric Corp. v. Public Service Commission. Indeed, after the FSPTCA's passage, several tobacco companies filed suit, arguing that these advertising restrictions violate the First Amendment.

This Comment examines the constitutionality of the FSPTCA by first explaining the development of the commercial speech doctrine from Central Hudson to Lorillard Tobacco Co. v. Reilly, the Supreme Court's most recent application of the commercial speech doctrine. This Comment further explains the wavering deference afforded the legislature under this doctrine, making Central Hudson's modern application uncertain. It then follows with an analysis of the relevant FSPTCA provisions at issue, examines proposed amendments to make the FSPTCA constitutional, and discusses implications for the FDA's jurisdiction over tobacco.

Ultimately, in light of the probable unconstitutionality of a portion of the FSPTCA, this Comment argues that Congress must amend the provisions by narrowly tailoring them to meet the government's substantial interest in preventing underage tobacco consumption. If these provisions are not modified to fall within the constitutional confines of Central Hudson, the FSPTCA will be nothing more than an impotent piece of legislation, leaving an overworked FDA to pick up the pieces.

INTRODUCTION: FIGHTING THE WAR AGAINST TEEN SMOKING .................... 707

I. FIRST AMENDMENT JURISPRUDENCE: BUILDING THE COMMERCIAL

SPEECH FRAMEWORK ......................................................................... 712

A. The Standard-Central Hudson Gas & Electric Corp. v.

Public Service Commission ........................................................ 713

B. Commercial Speech Jurisprudence Following Central Hudson: Wavering Judicial Scrutiny of Government Regulation .................................................................................. 715

II. A CENTRAL HUDSON ANALYSIS OF SELECTED FSPTCA PROVISIONS AND PROPOSED AMENDMENTS TO BRING THOSE PROVISIONS WITHIN THE PROVINCE OF THE FIRST AMENDMENT ...... 719

A. Central Hudson's First Prong: Nonmisleading Commercial

Speech ......................................................................................... 719

B. Central Hudson's Second Prong: Substantial Government

Interest ........................................................................................ 721

C. Central Hudson's Third and Fourth Prongs and an Analysis of Select FSPTCA Provisions ..................................................... 723

1. Black-and-White Text Requirement ...................................... 725

2. Restriction on Modified Risk Tobacco Product

Advertising ........................................................................... 729

3. The 1,000-Foot Outdoor Advertising Ban ............................ 733

4. Ban on Event Sponsorship and Promotional Products ........ 735

5. Prohibition on Free Sample Product Distribution ............... 739

6. Consequences of Unconstitutional Advertising

Restrictions and the Remnants of the FSPTCA .................... 741

III. RELEVANT CONSIDERATIONS EXTERNAL TO A MODERN

COMMERCIAL SPEECH ANALYSIS UNDER CENTRAL HUDSON ............. 744

A. Can the FDA Regulate Big Tobacco? ........................................ 745

B. Stepping Outside the Modern Central Hudson Framework ....... 747

CONCLUSION .................................................................................................. 748

INTRODUCTION: FIGHTING THE WAR AGAINST TEEN SMOKING

[T]he marketing of tobacco constitutes one of the greatest basic industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare.¹

After nearly fifty years of falling smoking rates, tobacco consumption in the United States is increasing.²Today, roughly 20% of adults in the United States are smokers.³Smoking kills more than 400,000 Americans a year⁴and more than five million people worldwide.⁵Death is not the only social ill caused by tobacco products; the Centers for Disease Control and Prevention estimates that tobacco-related illness in the United States costs upward of $193 billion each year in health care expenditures and lost productivity.⁶Equally troublesome is the number of young people using tobacco products in the United States. According to the Surgeon General, more than three million American adolescents use smoking products, one million adolescent males use smokeless tobacco products, and 82% of adults who have tried smoking first smoked when they were under the age of eighteen.⁷In contrast to the striking toll on productivity and millions of deaths around the globe is the enormous profit for the corporations that control the tobacco market.⁸To protect this market share and profitability, tobacco companies spend more than $6.1 billion a year on advertising.⁹

While headlines in recent decades have publicized strong efforts by the United States Food and Drug Administration (FDA) to curb tobacco use,¹⁰the government has not always been so assertive in addressing the public health problems created by tobacco products.

In 1938, Congress enacted the Federal Food, Drug, and Cosmetic Act (FDCA).¹¹The FDCA defines the scope of FDA jurisdiction over drugs and medical devices¹²and requires the FDA to ensure that all drugs and devices are safe and effective.¹³Less than twenty years after the FDCA's passage, the

Surgeon General declared that smoking causes lung cancer and other diseases.¹⁴In response, the House passed a bill amending the FDCA to include FDA oversight of tobacco,¹⁵but the bill never made it through the Senate.

Following that failure, Congress enacted numerous pieces of legislation designed to regulate the tobacco industry. For instance, in 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA).¹⁶Since the FCLAA's inception, the Federal Trade Commission (FTC) has exercised regulatory authority over cigarette labels and imposed restrictions on claims, while enforcing mandatory Surgeon General's warnings on packaging.¹⁷In

1967 the Federal Communications Commission (FCC) entered the tobacco arena, promulgating regulations governing tobacco advertising on the radio and television.¹⁸In addition to the FTC and FCC, government agencies like the Internal Revenue Service (IRS), Department of Agriculture, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), have authority to regulate various aspects of the tobacco industry.¹⁹

In 1996, the FDA unsuccessfully attempted to regulate tobacco products under the FDCA,²⁰which prohibits any misbranded food, drug, or device from "introduction into interstate commerce."²¹The FDCA denotes a product as misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof."²²However, to be regulated as a "drug," the product must be "intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease."²³After extensively investigating tobacco companies' practices, the FDA maintained that it had found the requisite intent needed to regulate tobacco products.²⁴Without imposing an outright ban, the FDA sought to classify cigarettes as restricted drug-delivery devices in an attempt to reduce the exposure and influence of tobacco on the nation's adolescents.²⁵

Despite the FDA's efforts, the Supreme Court in FDA v. Brown & Williamson Tobacco Corp. held that the FDA lacked jurisdiction to regulate the tobacco industry.²⁶The Court concluded that under the FDCA, tobacco would have to be banned altogether because it would be a "misbranded" product that could not be approved as safe and effective.²⁷But due to Congress's repeated actions ensuring tobacco's legality and prior FDA acquiescence over tobacco regulation, the FDA had no jurisdiction to regulate, or ban, tobacco products.²⁸

Responding to mounting public pressure following the Brown & Williamson decision, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (FSPTCA or Act) into law on June 22,

2009.²⁹The FSPTCA adopts the ill-fated 1996 FDA regulations and gives the

FDA exclusive jurisdiction to regulate tobacco,³⁰but specifically prohibits the

FDA from banning tobacco sales or eliminating nicotine from cigarettes.³¹

The Act also includes advertising and promotional restrictions,³²and places an outright ban on the sale of flavored tobacco products.³³

In light of the First Amendment attack on the advertising provisions of the FSPTCA, Part I of this Comment analyzes the development of commercial speech jurisprudence stemming from Central Hudson Gas & Electric Corp. v. Public Service Commission, which set the framework for the modern commercial speech doctrine. Part II examines the constitutionality of select provisions of the Act and proposed amendments that may bring the FSPTCA's advertising provisions within the province of the First...