Tuesday, June 16, 2009

Constitutionality of FDA Tobacco Legislation is Already Being Challenged; First Amendment Lawsuit Almost Certain

According to an article in yesterday's New York Times, a constitutional challenge of the FDA tobacco legislation - based on the First Amendment - is almost a certainty. The advertising industry, tobacco companies, and the ACLU have all challenged the constitutionality of the legislation's advertising restrictions, hinted that lawsuits are pending, and predicted that the restrictions will largely be overturned by the Supreme Court.

According to the article: "The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week. ... Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools."

The article points out: "In the 2001 case, the Supreme Court struck down a Massachusetts ban on tobacco ads, including outdoor billboards and signs that could be seen within 1,000 feet of any public playground and elementary or secondary school. That ban, which would have eliminated tobacco advertising in about 89 percent of Boston, is virtually identical to one standard in the new federal law. The Supreme Court found it to be an unconstitutional limit of the First Amendment right to free speech in part because it was simply too broad. The effect 'will vary based on whether a locale is rural, suburban, or urban,' Justice Sandra Day O’Connor wrote for the majority. 'The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.'"

The Rest of the Story

There are two aspects of the legislation that are likely to be challenged on First Amendment grounds. First is the bill's advertising restrictions. Second is the bill's restrictions on truthful information that the tobacco companies are permitted to communicate to their customers.

The bill's advertising restrictions are unlikely to be upheld by the Supreme Court because the Court has already struck down very similar regulations that were issued in Massachusetts. Here, the state imposed a ban on smokeless tobacco advertising within 1000-feet of schools and playgrounds, which is identical to one of the major advertising restrictions in the FDA legislation. The Supreme Court struck down those restrictions, ruling that they violate the First Amendment's protection of free speech rights of the tobacco companies.

As a Congressional Research Service analysis explains the decision: "The Court determined that the regulations restricted speech more than was reasonable to advance the state’s interest in reducing underage (i.e., illegal) use of tobacco products and, thus, failed to meet the fourth part of the Central Hudson test. Banning all outdoor tobacco advertisements within 1,000 feet of a school or playground, in conjunction with other zoning restrictions, argued the Court, “would constitute a nearly complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.” The Court found that the restrictions on outdoor advertising of cigars and smokeless tobacco were overbroad in that they prohibited advertising “in a substantial portion of the major metropolitan areas of Massachusetts,” included oral communications, and imposed burdens on retailers with limited advertising budgets. The Court also upheld challenges by smokeless tobacco and cigar companies to the outdoor advertising restrictions on the grounds that adults have a right to information and the tobacco industry has a right to communicate truthful speech on legal products."

The Campaign for Tobacco-Free Kids and other health groups have been misleading their constituents and the public about the likely effect of the legislation on cigarette advertising, because these groups have not been honest with us about the fact that the bill's advertising restrictions are almost certainly going to be challenged in court and the fact that very similar restrictions were overturned by the Supreme Court in 2001.

When all is said and done, the effect of the legislation's remaining advertising restrictions is likely to be quite minor.

The second aspect of the legislation which will almost certainly be challenged in court is the bill's prohibition on cigarette companies making truthful statements about FDA regulation of tobacco products. The House version of the bill prevents companies from even stating that FDA regulation of tobacco products exists, while the Senate version prevents companies from making any statement that could be implied as suggesting that the FDA approves cigarettes for sale and consumption. In both cases, the constitutionality of the legislation is doubtful because it prevents companies from making truthful statements and therefore is likely in violation of their First Amendment free speech rights.

Jonathan Adler points out the absurdity of this aspect of the legislation: "One fear of tobacco-control activists is that cigarette companies would trumpet FDA approval, giving consumers the impression that cigarettes and other tobacco products are safe — or at least “safer” — now that the FDA is involved. To address this concern, the bill prohibits “any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that the product is approved by the Food and Drug Administration,” or was somehow deemed “safe” by the federal government. So while the FDA will now have the final say over what tobacco products may be on the market, federal law will purport to prohibit companies from saying so, lest consumers be “misled” into believing FDA regulation of tobacco is for their benefit."

Supporters of the FDA legislation are trying to have it both ways. On the one hand, they're trying to argue that cigarettes are going to be made safer by virtue of FDA regulation, thus reducing health risk and saving millions of lives. On the other hand, they don't want cigarette companies to tell the public that the FDA regulates cigarettes because they are afraid that the public might wrongly infer that cigarettes are going to be made safer by virtue of FDA regulation, thus reducing health risk and saving millions of lives.

Now you can see why I call this a scam.

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