FDA regulation of tobacco advertising and youth smoking. Historical, social, and constitutional perspectives
L. O. Gostin, P. S. Arno and A. M. Brandt
Georgetown/Johns Hopkins University Program on Law and Public Health, Washington, DC 20001, USA.
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.
