Up in smoke? Commercial free speech in the United States and the European Union: why comprehensive tobacco advertising bans work in Europe, but fail in the United States.

• Author: Flanagan, Sean P.

"Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensible." (1)

1. INTRODUCTION

   On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (Smoking Prevention Act) into law, authorizing new methods to fight youth smoking. (2) the new law provides the legislative approval necessary for the Food and Drug Administration (FDA) to regulate the tobacco industry. (3) Advertising and marketing restrictions designed to thwart the tobacco industry's attempts to communicate with American youths are among the new rules and regulations proposed in the Smoking Prevention Act. (4) The new law mimics legislation passed within the European Union (EU), which instituted a complete ban on tobacco advertising in print, radio, and national services media. (5) Although the World Health Organization (WHO) argues that comprehensive bans on advertising--like the one implemented in the EU--are effective means to prevent youth smoking, a major commercial free speech battle looms on the horizon--one that may prove fatal to the Smoking Prevention Act. (6)

   Both the United States and the EU provide protection for at least some commercial speech. (7) The difference between the two lies in the degree of protection afforded to such speech, and in what situations the government can regulate or ban commercial speech. (8) In the United States, the Supreme Court has recognized the importance of protecting commercial free speech that is neither misleading nor deceptive. (9) In the recent case Lorillard Tobacco Co. v. Reilly, (10) the Supreme Court held that a Massachusetts tobacco advertising regulation violated commercial free speech because the rules were not narrowly tailored to avoid infringing the rights of able-minded adults. (11) Although the Court did not affo JERRY N. WEISS is an artist who teaches at the Lyme Academy College of Fine Arts in Old Lyme, Connecticut. Visit his website at www. jerrynweiss.com. rd commercial speech the heightened level of protection that guards noncommercial expression--both political and religious--it held that legislators must narrowly tailor restrictions on commercial speech to meet specific objectives. (12) By contrast, both the European Convention on Human Rights (ECHR) and the European Court of Justice (ECJ) afford less protection to commercial speech and more deference to lawmakers, allowing broad prohibitions and regulations given certain justifications. (13)

   In 2003, the EU established sweeping tobacco advertising restrictions for all print media. (14) Germany challenged the new restrictions the following year, citing violations of commercial free speech principles laid out in the ECHR. (15) The ECJ held that although the regulations did violate the freedom of expression of advertisers and promoters, the ECHR states that commercial freedom of expression is subject to limitations that allow lawmakers to effectively protect consumers and the general public. (16) EU lawmakers, therefore, have an inherent advantage compared to their U.S. counterparts when attempting to restrict or ban certain types of commercial advertising. (17)

   This Note will begin with an overview of historical developments leading up to the passage of the Smoking Prevention Act. (18) This Note will then examine the origins of commercial free speech jurisprudence in both the United States and the EU. (19) Next, this Note will analyze the differences in the judicial interpretation of commercial free speech in the United States and the EU, as well as the constitutional difficulties that lie ahead for the Smoking Prevention Act. (20) Finally, this Note will discuss the pros and cons of constitutionally valid strategies--such as higher taxes on cigarettes and clean air requirements--that lawmakers may adopt to achieve the goal of reducing youth smoking rates. (21)

2. HISTORY

   1. The History Behind the Family Smoking Prevention and Tobacco Control Act

      In 1996, the FDA asserted control over tobacco regulation after determining the definition of "drug" found in the Food Drug and Cosmetic Act (Cosmetic Act) included tobacco products. (22) With this newly found authority, the FDA quickly drafted new regulations and rules restricting the sale and distribution of tobacco products to minors. (23) Before the FDA codified the new regulations, however, the Supreme Court determined that the agency lacked regulatory authority over the tobacco industry without explicit authorization from Congress. (24) The Court's decision did not, however, answer any questions regarding the constitutionality of such advertising regulations under the First Amendment. (25)

      On June 22, 2009, President Barack Obama signed into law the Smoking Prevention Act, thereby granting the FDA regulatory authority over the tobacco industry. (26) The Smoking Prevention Act adopted the same advertising restrictions the FDA proposed in 1996--preventing tobacco advertisements within one thousand feet of public parks and schools, restricting print media advertising, and limiting tobacco advertisements to mere black and white type. (27) The outdoor advertising restrictions the Smoking Prevention Act adopted are subject to a final regulation the Secretary of Health and Human Services (HHS) issued after consideration of the advertising restrictions within the scope of current First Amendment jurisprudence. (28)

      In September 2009, several tobacco companies filed suit in the United States District Court in Bowling Green, Kentucky. (29) The tobacco companies claimed that the new advertising restrictions set out in the Smoking Prevention Act violated their First Amendment commercial free speech rights. (30) In Commonwealth Brands, Inc. v. United States, (31) the United States District Court for the Western District of Kentucky heard the tobacco industry's challenge to the Smoking Prevention Act. (32) The court held that the Smoking Prevention Act restrictions limiting tobacco advertisement to black and white text violated the tobacco industry's commercial free speech rights and enjoined the government from enforcing these restrictions. (33) The court reserved judgment about the constitutionality of the outside advertising bans the Smoking Prevention Act proposed. (34) The court held the issue unripe because the Secretary of HHS had not yet made a final regulation concerning the proposed outdoor advertising restrictions. (35) According to the Smoking Prevention Act, the Secretary of HHS had until March 22, 2010, to modify or implement the proposed outdoor advertising restrictions. (36)

      On March 19, 2010, the Secretary of HHS issued a final regulation concerning the advertising issues contained within the Smoking Prevention Act. (37) The Secretary of HSS called for further reflection and study of the effects outdoor advertising had on youth smoking. (38) As a result of the Secretary's determination, the FDA will solicit data and research in an effort to carefully craft outdoor advertising restrictions in light of recent First Amendment jurisprudence. (39) Currently, the Secretary of HHS reserves any implementation of the proposed outdoor advertising restrictions until the FDA adequately researches the issue. (40) In the final regulation, the Secretary also made note of the government's intention to appeal the decision the court rendered in Commonwealth Brands, Inc. v. United States regarding the color and placement of advertising restrictions. (41)

   2. Commercial Free Speech and Tobacco Advertising Regulation in the United States

      Until the middle of the twentieth century, the Supreme Court of the United States excluded commercial speech from the shield of First Amendment free speech protection. (42) For more than thirty years, Valentine v. Chrestensen (43) provided the controlling rule regarding commercial speech and the First Amendment. (44) In Valentine, the Court distinguished commercial speech from other forms of solicitation-based expression such as political and religious recruitment. (45) The Valentine Court granted free speech protection to noncommercial communications, but held that commercial speech failed to carry the requisite public interest required for protection under the First Amendment. (46) The Court's recognition of some commercial free speech rights--although minimal--began in the 1970s with Bigelow v. Virginia. (47) In Bigelow, the Court held that certain types of commercial speech may earn protection under the First Amendment and invalidated a Virginia statute prohibiting advertisement of abortion services. (48) The Bigelow Court balanced the importance of commercial expression against the state's interest in protecting the public--one of the first instances in which the Court recognized commercial speech protection. (49)

      One year later, the Court extended commercial free speech more protection in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. (50) In Virginia State Board of Pharmacy, the Court overturned a Virginia law prohibiting pharmacists from advertising drug prices, holding that such a statute violated commercial free speech. (51) The Court held that the Virginia statute violated consumers' right to free flow of information from those selling important products. (52) The Court reasoned that it was important for individuals to gain awareness of prescription prices, which, in many instances, is vital to the quality of life of those dependent on prescription medication at an affordable price. (53)

      The Court...