Counteracting Cigarette Advertising

Abstract

IN THIS ISSUE OF THE JOURNAL, BAYER ET AL 1 PROPOSE SOME answers to the perplexing question of what to do in response to tobacco advertising that continues to induce thousands of young people to become new smokers every year. Unfortunately, their ideas either encounter substantial constitutional hurdles or have serious practical impediments that would preclude them from attaining their goals. In order to understand what approaches might be worth exploring, it is first necessary to take another look at the Supreme Court’s decision Lorillard Tobacco Co. v. Reilly, before concluding that the First Amendment dooms all efforts to ban or limit tobacco advertising. At issue in Lorillard was whether the prohibition on all outdoor advertising and signage for tobacco products within 1000 ft of a school or playground, and certain restrictions on the placement of point-of-sale promotional materials for tobacco products, were sufficiently tailored to satisfy the First Amendment. As the industry cleverly pointed out, that scheme had a number of vulnerabilities that made it a particularly inviting target for a constitutional attack. First, the Massachusetts regulation being challenged was not a legislative enactment, but a rule issued by the attorney general who, presumably, is not chosen for his expertise in health issues, let alone in tobacco control. Second, the rule was issued almost immediately after the effective date of the Master Settlement Agreement (MSA) with the industry, under which billboard advertising was significantly restricted. The Massachusetts rule largely relied on the pre-MSA rule of the Food and Drug Administration (FDA) and hence did not, and indeed given the timing, could not have taken account of any impact that the MSA had on reducing youth smoking. Furthermore, the rule was issued without the kind of public input that the FDA used when it issued its rule, in particular input on the impact of the MSA and other recent events. It also appears that the attorney general was not aware of the almost blanketing effect that his 1000-ft billboard rule would have in a number of large cities, thereby underscoring the argument that the rule was not narrowly tailored. Third, the First Amendment aspects of Lorillard were technically limited to tobacco products other than cigarettes because the Court, in an earlier part of its opinion, found that Congress had preempted any state laws on the subject of cigarette billboard advertising. Since virtually all of the existing evidence relates to cigarette advertising, this made it even harder for the state to show that these restrictions were necessary for cigars and other tobacco products. Fourth, the Court has shown a decided preference (or it has so construed Congress’s wishes) for uniform national rules on this subject, and Massachusetts was going it alone. Last, the provisions outlawing on-premises ads lower than 5 ft and those forbidding indoor signs that could be viewed from outside the premises were quirky at best and smacked of overkill, even if the stated purpose was to prevent young (small) children from being exposed to cigarette advertising. Is there room to argue after Lorillard that a more carefully tailored and better justified set of rules might survive, or is this the end of all efforts to restrict tobacco advertising? Initially, Congress would have to eliminate the preemption problem by narrowing the scope of the provision relied on by the Court in Lorillard. If that were done, surely a law that outlaws cigarette ads on billboards across from schools and playgrounds would survive a First Amendment challenge, in part because the industry has voluntarily agreed to a ban with a 500-ft radius. Thus, the issue is primarily one of line drawing, and the real concern is not whether a constitutional line can be drawn, but whether a restriction that is constitutional will have any significant impact on youth smoking. One of the premises behind the Supreme Court’s protection of commercial speech is that it conveys useful information. I know that because I was the lawyer who won the first commercial speech case in the Supreme Court, Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 3 in part because we persuaded the Court that the information being suppressed there—the prices of prescription drugs—was truthful, verifiable, and useful to consumers. It would make no sense to try to apply the first 2 criteria to cigarette advertising, since any judgments would be highly subjective. But utility may be a different matter, if criteria could be established to measure or rank the con-