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A Proposal for a Constitutionally Acceptable Form of Regulation

Ronald Bayer, PhD; Lawrence O. Gostin, JD,LLD; Gail H. Javitt, JD,MPH; Allan Brandt, PhD

JAMA. 2002;287:2990-2995.

Lorillard Tobacco Co. v Reilly is the latest in a series of Supreme Court cases striking down public health regulation of advertising as a violation of the First Amendment. In its decision, the Supreme Court significantly reduced the scope of constitutionally acceptable forms of regulation of tobacco advertising and created an almost insoluble dilemma for public health authorities. Control over advertising, along with taxes and restrictions on smoking in public settings, plays an important role in the public health response to tobacco. Those committed to reducing the patterns of cigarette-related morbidity and mortality should broaden their advertising-related strategies and consider the role that greater disclosure of the health harms of tobacco can have on reducing consumption. Toward this end, we propose a comprehensive system of taxation and regulation designed to increase public appreciation and comprehension of the health risks of cigarettes. First, we consider a tax to be levied on tobacco advertising and promotion or, as an alternative, a new excise tax, the proceeds of which would be used exclusively to fund a Centers for Disease Control and Prevention–directed national antitobacco campaign. Second, all print advertising should be required to carry public health warnings equivalent to 50% of the space devoted to the advertisement. Third, manufacturers should be required to devote one full side of cigarette packages to graphic pictorials displaying the dangers of smoking. The tobacco industry would no doubt respond by declaring such efforts an unwarranted burden, an example of constitutionally suspect compelled speech. However, this would be a battle worth engaging, because it might have an impact on tobacco-related morbidity and mortality in the United States.

Author Affiliations: Mailman School of Public Health, Columbia University, New York, NY (Dr Bayer); Center for Law and the Public's Health at Georgetown University Law Center, Washington, DC, and Johns Hopkins School of Public Health, Baltimore, Md (Mr Gostin); University of Maryland School of Law, Baltimore (Ms Javitt); and Department of Social Medicine, Harvard University, Boston, Mass (Dr Brandt). Ms Javitt was a Greenwall Fellow at Johns Hopkins University, Baltimore, Md, and Georgetown University, Washington, DC.

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