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Historical, Social, and Constitutional Perspectives

Lawrence O. Gostin, JD; Peter S. Arno, PhD; Allan M. Brandt, PhD

JAMA. 1997;277(5):410-418.

Abstract
Perspectives on tobacco control in American society have shifted markedly. As the view that smoking as a voluntarily assumed health risk has declined, the social and political environment has become more conducive to industry regulation. This transformation can be traced to the mounting evidence of the health risks of secondary smoke; the addictive quality of nicotine; the vulnerability and exploitation of young people; and industry knowledge of the harmful effects of tobacco. Regulation of tobacco advertising and promotions by the Food and Drug Administration (FDA) raises serious concerns about constitutional protection for commercial speech. However, the minimal informational value of tobacco advertising suggests that it should be afforded a low level of constitutional protection. The FDA regulations impose reasonable "time, place, and manner" restrictions, leave open alternative channels of communication, restrict messages that are harmful to the public health, do not restrict political speech, prevent misleading messages, and help deter the unlawful sale of tobacco products to minors. The regulations meet the traditional criteria for regulating commercial speech, in that the government's asserted interest is strong, the agency's regulations directly advance that interest, and the regulations are no more extensive than necessary. Thus, the judiciary should defend the FDA's historical social and legislative mission to protect the public health.

Author Affiliations
From the Georgetown/Johns Hopkins University Program on Law and Public Health, Washington, DC, and Baltimore, Md (Mr Gostin); the Department of Epidemiology and Social Medicine, Montefiore Medical Center, Albert Einstein College of Medicine, Bronx, NY (Dr Arno); and the Department of Social Medicine, Harvard Medical School, Boston, Mass (Dr Brandt).

Footnotes
Reprints: Lawrence O. Gostin, JD, Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.

Health Law'and Ethics section editors: Lawrence O. Gostin, JD, the Georgetown/ Johns Hopkins University Program on Law and Public Health, Washington, DC and Baltimore, Md; Helene M. Cole, MD, Contributing Editor, JAMA.

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