Monday, August 13, 2007

IN MY VIEW: Campaign for Tobacco-Free Kids' Claims that FDA Legislation Would Reduce Youth Smoking are Based on Faulty Reasoning

In its propaganda regarding the proposed FDA tobacco legislation, the Campaign for Tobacco-Free Kids tries to lead the public to believe that through its restrictions on tobacco advertising, the bill would substantially reduce youth smoking.

The Rest of the Story

The rest of the story is that there's a critical thing that the Campaign for Tobacco-Free Kids is not telling its constituents and the public:

The advertising restrictions in the FDA legislation most likely violate the First Amendment to the Constitution and are almost certain to be overturned by the Supreme Court.

In Lorillard v. Reilly (533 U.S. 52, 2001), the Supreme Court held unconstitutional Massachusetts regulations that did nothing more than eliminate tobacco advertising within 1,000 feet of schools and playgrounds. The Court found that these regulations did not meet the fourth prong of the requirements set out by Central Hudson for advertising restrictions to comply with First Amendment commercial free speech protections: that the requirements be tailored as narrowly as possible to advance the relevant government interest.

In light of the Supreme Court's 2001 decision, it seems very unlikely that the much less narrowly tailored (and frankly, rather arbitrary) rules promulgated by the FDA, which were themselves overturned by the Supreme Court but which are contained in the legislation, would pass constitutional muster.

In other words, by boasting about how much the FDA legislation will do to curtail cigarette advertising to youths and how much that will reduce youth smoking, the Campaign for Tobacco-Free Kids is making a mountain out of a mole hill.

Here's what the Supreme Court had to say about merely a restriction on advertising within 1,000 feet of schools:

"Whatever the strength of the Attorney General's evidence to justify the outdoor advertising regulations, however, we conclude that the regulations do not satisfy the fourth step of the Central Hudson analysis. The final step of the Central Hudson analysis, the "critical inquiry in this case," requires a reasonable fit between the means and ends of the regulatory scheme. The Attorney General's regulations do not meet this standard. The broad sweep of the regulations indicates that the Attorney General did not "carefully calculat[e] the costs and benefits associated with the burden on speech imposed" by the regulations."

"The outdoor advertising regulations prohibit any smokeless tobacco or cigar advertising within 1,000 feet of schools or playgrounds. In the District Court, petitioners maintained that this prohibition would prevent advertising in 87% to 91% of Boston, Worcester, and Springfield, Massachusetts. ... Thus, the Court of Appeals concluded that the regulations prohibit advertising in a substantial portion of the major metropolitan areas of Massachusetts." ...

"The State's interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products. In a case involving indecent speech on the Internet we explained that "the governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults."

The conundrum inherent in the attempt to reduce youth smoking by restricting cigarette advertising is that the 3rd and 4th prongs of the Central Hudson requirement for restriction of commercial free speech are such that any restrictions that are broad enough to actually make a difference in reducing youth smoking are also going to be construed as being overly broad to constitute the narrow tailoring that is required.

While the Campaign for Tobacco-Free Kids' hype may sound great in its propaganda campaign, the advertising restrictions in the FDA legislation will not reduce youth smoking. They will not even sustain a constitutional challenge. Therefore, all the talk about the FDA legislation reducing youth smoking by curtailing cigarette advertising that reaches kids is little more than baseless chatter. It is based on seriously faulty reasoning, and therefore, is simply more of the quackery and deception that we have come to expect from the Campaign.

No comments: