PROPOSED GOVERNMENT REGULATION OF TOBACCOADVERTISING USES TEENS TO DISGUISE FIRSTAMENDMENT VIOLATIONS

Mark R. Ludwikowski

The battle lines between Big Brother' and JoeCamel' have been drawn' and a victory by eitherside is likely to result in a controversy similar to thatfollowing the verdict from the O.J. Simpson trial.The outcome of the tobacco advertising war turns ona choice between the lesser of two evils; either theadvertising of a potentially harmful product will bepermitted or an advertiser's freedom of speech willbe restricted. The reviewing courts should rule infavor of preserving the constitutional principle offree speech as guaranteed by the First Amendment.4

Even if such a decision appears to defend actionsthat most Americans oppose, it would, in the longrun, provide a greater benefit to the Americanpublic.

This Comment evaluates the constitutionality ofthe recently proposed tobacco advertising restrictions.Part I reviews the course of governmental regulationof tobacco from its introduction in America to pre-sent day. Part II examines the evolution of commer-cial speech jurisprudence. Part III argues that therecently proposed restrictions, which seek to limit to-bacco advertising, do not comply with the establishedstandards governing commercial speech. Although asubstantial government interest exists, the regula-tions fall short of furthering this interest because

In the novel, Big Brother is an omnipotent and authorita-

rian governmental entity which monitors all the behavior of itscitizens. GEORGE ORWELL, 1984 (1949).

' Joe Camel is the star of a cigarette advertising campaignwhich features "a cartoon character who at times [gives] out dat-ing and social advice." Kids Mustn't Smoke; Clinton's Right ToRegulate Nicotine As a Drug, Although His Limits On Ads GoToo Far, NEWSDAY, Aug. 14, 1995, at A18 [hereinafter KidsMustn't Smoke].

" President William T. Clinton, Press Conference in theEast Room of White House (Aug. 10, 1995) [hereinafter ClintonTranscript] (on file with CoMMLAW CONSPECTUS). On August10, 1995, President Clinton announced by Executive Authority,that he was instructing the Food and Drug Administration to"initiate a broad series of steps all designed to stop sales andmarketing of cigarettes and smokeless tobacco to children." Id.

they are over-inclusive and because less intrusive al-ternatives are available. This Comment concludes, inPart IV, that the reviewing courts should dismiss theproposed regulations for their failure to satisfy theexisting standards for commercial speech analysis.

I. HISTORY OF TOBACCO REGULATION

Government regulation of tobacco is barely a cen-tury old. Tobacco itself was introduced to the West-ern World in 1492 by Christopher Columbus duringhis first voyage to the New World.5 By the middle ofthe sixteenth century tobacco had become popular inEurope and, while the colonies settled, it became themost desired American crop.6

Although the recently proposed regulations are themost comprehensive, the government has been re-stricting tobacco advertising and methods of sale forover a century. As early as 1890, when cigarettesbegan increasing in popularity among the Americanpublic, twenty-six states passed regulations banningsales to minors.8 By 1909, with an anti-smokinglobby growing in strength, over a dozen states com-pletely banned the manufacture, sale, and possessionof cigarettes.9

4 U.S. CONST. amend. I.' Kenneth L. Polin, Argument For The Ban of Tobacco Ad-

vertising: A First Amendment Analysis, 17 HOFSTRA L. REV.99, 100 n.11 (1988) (citing J. BROOKS, THE MIGHTY LEAF:TOBACCO THROUGH THE CENTURIES 11-12 (1952)).

I ld.7 Clinton Proposes Youth Antismoking Plan; FACTS ON

FILE WORLD NEWS DIGEST, Aug. 17, 1995, at 594. [hereinafterFACTS ON FILE].

s Jacob Sullum, The War On Tobacco; Smoking Regula-tions Go Way Too Far, SAN DIEGO UNION-TRIBUNE, Aug. 20,1995, at G1. Then, much as now, these regulations were half-heartedly enforced and children continued to buy cigarettes evenin jurisdictions which prohibited sales to minors. Id.

9 Id.

COMMLAW CONSPECTUS

Federal regulation of tobacco advertising officiallybegan in 1964 with the Surgeon General's report onthe health hazards of smoking,1" which motivatedCongress to pass the Federal Cigarette Labeling andAdvertising Act in 1965." In 1970, Congress contin-ued to regulate the tobacco industry by enacting thePublic Health Cigarette Smoking Act of 1969, whichtook away the ability of tobacco producers to adver-tise on television and radio. 2

Analysts and experts argued that the ban on tele-vision advertising actually increased the sale of ciga-rettes because it allowed the tobacco industry to stopmaking the previously required anti-smoking ads.1

Subsequently, additional regulations were imposedfollowing further investigation of the consequences ofsmoking on health.' Federal legislation in 1984 in-stituted requirements for stronger warning labels onall methods of cigarette advertising.' These warn-ings were extended to smokeless tobacco productsand print advertisements in the ComprehensiveSmokeless Tobacco Health Education Act of 1986.'

Despite these legislative measures, the use of to-bacco products by teenagers increased, while use byadults decreased.'" Although research data showsthat teenage smoking actually declined by about onepercent per annum during the 1980's, teenage smok-ing rose dramatically beginning in 1986.18 Due to

10 UNITED STATES DEP'T OF HEALTH, EDUC. & WELFARE,

SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMIT-

TEE TO THE SURGEON GENERAL PUBLIC HEALTH SERVICE 28-

29 (1964).l1 15 U.S.C. §§ 1331-1341 (1994). The Act requires all cig-

arette advertising products to include the warning: "Caution:Cigarette Smoking May Be Hazardous to your Health." Id.

12 15 U.S.C. § 1335 (1994). The Act prohibits the advertis-ing of "cigarettes and little cigars on any medium of electroniccommunication subject to the jurisdiction of the Federal Com-munications Commission." Id. The tobacco companies actuallysupported these regulations at the time because, corporate offi-cials considered the regulations to be a preferable alternative tothe anti-smoking commercials required by the FCC. See Polin,supra note 5, at 102.

18 Jay Nelson, an analyst with Brown Bros., Harriman &Co. in New York explained that "[t]here is a school of thought,that says when the ads were pulled from TV, the cigarette com-panies actually came out ahead, because they also pulled theiranti-smoking ads." Ira Teinowitz & Andrea Sachs, ClintonComes Out Smokin' Against Cigs;, ADVERTISING AGE, Aug. 14,1995, at 1. Cigarette sales volume actually increased in the yearsfollowing the ban. Id.

1, See 15 U.S.C. § 1333 (1994)."0 The Federal Cigarette Labeling and Advertising Act was

amended to require the following rotation of warnings:SURGEON GENERAL'S WARNING: SmokingCauses Lung Cancer, Heart Disease, Emphysema,And May Complicate Pregnancy.

the ban on electronic media, tobacco companies al-tered their advertising methods and adopted the useof popular sporting events and magazines as attrac-tive promotional media.' Although it is currently le-gal, this method of tobacco advertising has drawncriticism.

With intensified regulation and progressively de-clining sales of their products, tobacco companies ag-gressively promote their goods through unrestrictedmedia, particularly sporting events. Skeptics arguethat while most adults are able to recognize the ap-parent contradiction between tobacco use and athleticperformance, teenagers are more likely to find a falsesense of compatibility between the two activities.20

II. COMMERCIAL SPEECH JURISPRU-DENCE

Despite the apparent goals of the First Amend-ment, its guarantee of free speech has not been af-forded unlimited protection from regulation. InO'Brien v. United States,2' the Supreme Courtdemonstrated that it was unwilling to accept the"view that an apparently limitless variety of conductcan be labeled 'speech' whenever the person engag-ing in the conduct intends thereby to express anidea." 2 The Court stated that a limitation imposed

SURGEON GENERAL'S WARNING: QuittingSmoking Now Greatly Reduces Serious Risk toYour Health.SURGEON GENERAL'S WARNING: SmokingBy Pregnant Women May Result in Fetal Injury,Premature Birth, And Low Birth Weight.SURGEON GENERAL'S WARNING: CigaretteSmoke Contains Carbon Monoxide.

15 U.S.C. § 1333 (c) (1994).10 15 U.S.C. § 4401 (1986)." Elizabeth Gleick, Out of Mouths of Babes, TIME, Aug.

21, 1995, at 33. Among eighth graders, the percentage of thosewho smoked in the past 30 days increased 30% between 1991and 1994. Id.

18 David A. Locke, Counter Speech as an Alternative toProhibition: Proposed Federal Regulation of Tobacco Promotionin American Motorsport, 70 IND. L.J. 217, 226 (1994)."o Id. at 218. Tobacco advertisers have cleverly circumvented

the ban on active promotion of their products on television byadvertising at widely publicized and watched sporting eventssuch as motor racing. Id. The tobacco industry sponsors racingand in exchange is allowed to display its logos on the cars andbillboards surrounding the track. Id.

'o Id. at 220. The racing community overlooks the seeminglycontradictory marriage of tobacco and motor sports because thetobacco industry has been a very charitable sponsor. Id.

2- 391 U.S. 367 (1967).n Id. at 376.

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on First Amendment freedoms by the governmentmay be justified if it is borne out of a "sufficientlyimportant governmental interest."'28 Therefore, as-suming that a given conduct constitutes speech, thecourts may find that its protection under the FirstAmendment is limited. However, the governmentcannot simply restrict speech because it disagreeswith its message or content matter.2" The govern-ment must meet strict standards if it seeks to restricta method of expression.2 5

Commercial speech has been defined as speechwhich does "no more than propose a commercialtransaction.1"2 Traditionally, commercial speech wasconsidered to be an aspect of a free market economyand was subject to government regulation.17 It didnot receive protection under the First Amendmentuntil two decades ago.2 8 In the early 1970's, thecourts began to recognize that an open, competitive,and informative marketplace should be afforded pro-tection under the First Amendment.29 The informa-tional function of commercial speech was first recog-nized by the Supreme Court in two cases, Bigelow v.Virginia8" and Virginia State Bd. of Pharmacy v.Virginia Citizens Consumer Council.81

Although the Court recognized that the FirstAmendment guarantees the freedom of commercialspeech, it refused to extend the same amount of pro-tection that protects political speech. Laws infringingupon political speech, for example, are analyzed by

23 Id.

" Texas v. Johnson, 491 U.S. 397 (1989). Justice Brennanstated: "[ilf there is a bedrock principle underlying the FirstAmendment, it is that the Government may not prohibit the ex-pression of an idea simply because society finds the idea itselfoffensive or disagreeable." Id. at 414.

al See Consolidated Edison Co. v. Public Serv. Comm'n, 447U.S. 530, 538-39 (1980).

" Virginia State Bd. of Pharmacy v. Virginia Citizens Con-sumer Council, 425 U.S. 748, 762 (1976); see also Central Hud-son Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557,561 (1980)(stating that commercial speech is "related solely tothe economic interests of the speaker and its audience").

27 Consolidated Edison, 447 U.S. at 561."' Historically, courts have imposed restrictions on commer-

cial speech and have not been willing to include it under FirstAmendment protection. See, e.g., Williamson v. Lee Optical,Inc., 348 U.S. 483 (1955); see also Valentine v. Chrestenson,316 U.S. 52 (1942)(upholding a statute that prohibited the ad-vertising of handbills because it found a lack of constitutionallimits on governmental restriction of commercial advertising).

" See Virginia State Bd. of Pharmacy, 425 U.S. 748; seealso Bigelow v. Virginia, 421 U.S. 809 (1975).

so 421 U.S. 809 (1975).3- 425 U.S. 748 (1976).

3" Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1313(4th Cir. 1995)(petition for cert. filed) (citing Metromedia, Inc.

the courts under the rubric of strict scrutiny.82 TheCourt in Widmar v. Vincent 8 stated that the mostexacting scrutiny is applied to cases "in which aState undertakes to regulate speech on the basis of itscontent."8 The Supreme Court distinguished com-mercial speech because of its economic content andset a lesser standard of protection than that affordedto non commercial speech.88 Thus, commercialspeech is afforded intermediate scrutiny. 6 The rea-soning stems from the Court's determination thatsuch a standard is consistent with the "subordinateposition [of commercial speech] in the scale of FirstAmendment values." '3 7

Review of commercial speech regulation under thestandard of intermediate scrutiny is conducted underthe four-prong test developed in Central HudsonGas & Elec. Corp. v. Public Serv. Comm'n.88 Underthe scheme, set forth in Central Hudson the com-mercial speech must first concern a lawful activityand must not be misleading."' Should the commer-cial speech in question pass this threshold prong, theburden shifts to the government to: (1) assert a sub-stantial interest in support of its regulation; (2)demonstrate that the regulation directly advances thegovernmental interest asserted; and (3) show that theregulation is narrowly tailored and is "not more ex-tensive than is necessary" to serve the asserted gov-ernmental interest.'0

The basis for affording First Amendment protec-

v. San Diego, 453 U.S. 490, 505-507 (1981)(plurality opinion).as 454 U.S. 263, 276 (1981). The Court examined restric-

tions placed by the University of Missouri, Kansas City uponthe ability of student religious groups to conduct meetings oncampus. It held that the University exclusionary policy was notcontent-neutral and, therefore, violated the First Amendment.Id.

I' See, e.g., Carey v. Brown, 447 U.S. 455 (1980).See Carey v. Population Serv. Int'l, 431 U.S. 678

(1977) (restricting advertising of contraceptives).3" See Florida Bar v. Went For It, Inc., 115 S.Ct. 2371

(1995). The Court applied the intermediary scrutiny standardwhen examining the effects of lawyer advertising in light of thestate's substantial interest of preserving the integrity of the legalprofession. Id.

" Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456(1978). Commercial speech, which is afforded protection underthe First Amendment, may be subjected to greater governmentalregulation than, for example, political expression. See LamarOutdoor Advertising, Inc. v. Mississippi State Tax Comm'n, 701F.2d 314, 319 (5th Cir. 1983).

38 447 U.S. 557 (1980). The key in determining whetherprotection should be granted stems from the Court's balance ofthe "expression and of the governmental interests served by itsregulation." Id. at 563.so Id.40 Id.

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tion to commercial speech stems from its informa-tional function. 1 Courts have recognized the value ofcommercial speakers because they "have extensiveknowledge of both the market and their products"and "are well-situated to evaluate the accuracy oftheir messages and the lawfulness of the underlyingactivity."' 42 At the same time, the Supreme Court hasnot hesitated in upholding governmental restrictionson speech which initiate or evidence illegal con-duct.43 The courts permitted regulation in such in-stances as the exchange of information regarding se-curities,44 direct lawyer solicitation, 46 and theexchange of price and production information.46

Generally, the right to engage in commercialspeech has been asserted by those seeking to use it tomarket their products or services. 47 The recipients ofthe commercial speech have also asserted their rightto benefit from such speech.48 The Supreme Courtextended this right to those who relay commercial

41 See, e.g., Anheuser-Busch, Inc. v. Schmoke, 63 F.3d at

1312-13 (4th Cir. 1995).4' Bates v. State Bar, 433 U.S. 350, 381, (1977).

"' Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502(1984). "It has never been deemed an abridgment of freedom ofspeech or press to make a course of conduct illegal merely be-cause the conduct was in part initiated, evidenced, or carried outby means of language, either spoken, written, or printed." Id.

44 See, e.g., SEC v. Texas Gulf Sulphur Co., 401 F.2d 833(2d Cir. 1968).

45 See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447(1978).4" See, e.g., American Column & Lumber Co. v. United

States, 257 U.S. 377 (1921).41 See, e.g., Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm'n, 447 U.S. 557 (1980). See also Friedman v. Rog-ers, 440 U.S. 1 (1979); Bates v. State Bar of Arizona, 433 U.S.350 (1977).

48 See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citi-zens Consumer Council, 425 U.S. 748, 756-57 (1976); see alsoUnited States Postal Serv. v. Athena Products, Ltd., 654 F.2d362 (5th Cir. 1981).

4, See Metromedia, Inc. v. San Diego, 453 U.S. 490(1981)(plurality opinion) (upholding the right to disseminatecommercial speech to outdoor advertisers who challenged a bill-board ban).

50 The proposed FDA regulations supported by the Presi-dent are to allow tobacco sales only to people aged over 18 andolder, requiring vendors to verify proof of age by checking iden-tification (all states already had similar laws);

Prohibit cigarette sales from vending machines and bymail order, allowing only 'face-to-face' sales;Prohibit free tobacco samples and ban the sale of individ-ual cigarettes or packs of fewer than 20;Ban brand-name tobacco advertising at sporting eventsand on products not related to tobacco use, such as cloth-ing, instead allowing only company names;Ban outdoor tobacco advertising within 1,000 yards(900m) of schools and playgrounds, permitting only black

speech from a speaker for a fee (i.e., advertisers).' 9

The Food and Drug Administration's ("FDA" or"Administration") recently proposed ban on tobaccoadvertising 0 raises significant constitutional concernsregarding the protection of commercial speech underthe First Amendment. The government attempts tojustify these restrictions by declaring nicotine an ad-dictive drug that warrants regulation.6 1 The FDA'sammunition for the ban stems from indications thatthe tobacco companies deliberately focused their ad-vertising on children and teens. 2 The Administra-tion claims that the current laws prohibiting sales tominors fail to prevent them from smoking." It ar-gues that a ban on the marketing of tobacco productswould eliminate the temptation for many teens tosmoke.6 '

The tobacco industry quickly attacked the pro-posed advertising restrictions because it has a veryhigh financial stake at risk. Tobacco remains one of

and white text in other outdoor and in-store tobacco ads;Limit tobacco advertising in publications with a signifi-cant amount of young readers to black and white textonly; andRequire tobacco industry to institute an annual $150 mil-lion advertising campaign to prevent youth smoking.

FACTS ON FILE, supra note 7, at 595. The regulations also re-quire tobacco producers to submit sample labels and advertisingto the FDA for inspection. Debra Gersh Hernandez, Restric-tions On Cigarette Advertising, EDITOR & PUBLISHER, Aug. 19,1995, at 12.

" Regulations Restricting the Sale and Distribution of Ciga-rettes and Smokeless Tobacco Products to Protect Children andAdolescents, 60 Fed. Reg. 41346 (1995) (to be codified at 21C.F.R. pts. 801, 803, 804 and 897). The FDA claimed thatsmokeless tobacco and cigarettes fall under the jurisdiction of theFederal Food, Drug and Cosmetic Act because the nicotine theydeliver is "intended to affect the structure or function of the bodyand it achieves its intended effects through chemical actionwithin the human body." Id. One commentator strongly disap-proved of the FDA's announcement, remarking that declaringthe cigarette as a "nicotine-delivery-device" was analogous to"saying that Scotch is an 'ethanol-delivery-device' or that coffeeis a 'caffeine-delivery-device. Such simplistic pseudoscientific ter-minology reduces smoking to a pharmacological compulsion."Sullum, supra note 8, at GI.

" See Kids Mustn't Smoke, supra note 2, at A18. It hasbeen estimated that children illegally purchase approximately250 million packs of cigarettes a year which accounts for $962million in revenue. Jennifer Bojorquez, Why Do Kids Smoke;"SACRAMENTO BEE, Aug. 25, 1995, at SCI.

"' Currently all 50 states have laws prohibiting the sales ofcigarettes to persons under 18 years old. Sullum, supra note 8, atGi.

"' Joseph Perkins, Kids Are Just a Smoke Screen, ATLANTAJ. & CONSTITUTION, Aug. 23, 1995, at All. Health andHuman Services Secretary Donna Shalala has claimed that chil-dren are pressured into smoking by the images which portraythe activity as being "cool." Id.

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the largest crops in the United States." It is esti-mated that if the ban goes into effect, tobacco compa-nies risk losing "$256 million the first year and $1.2billion over 10 years.")56

Opponents of the proposed FDA advertising banclaim that the Administration lacks the appropriatejurisdiction because only Congress has the power toregulate tobacco.5 7 Nevertheless, the chief objectionraised by critics of the proposed restrictions is the al-leged First Amendment violation. A coalition of to-bacco companies, publishers, and advertisers arguethat a ban on tobacco advertising would violate theirright of free speech protected by the First Amend-ment. 8 Although the dispute over the extent of pro-tection granted to advertising under the FirstAmendment is not a new one, it is likely that theSupreme Court will be the final arbiter in what isalmost certain to be a painstaking legal battle.

III. CONSTITUTIONALITY OF THE PRO-POSED ADVERTISING REGULATIONS

Tobacco companies challenged the FDA's jurisdic-tion in proposing restrictions on tobacco advertising,asserting that only Congress has the power to regu-late tobacco.5 9 But governmental censorship of tradi-tionally protected commercial speech for the purposeof controlling lawful behavior that the governmentdetermines to be harmful remains the key issue. Ifpromulgated, such regulatory measures might startsociety down a slippery slope of governmentalparenting through the use of speech controls. In or-

"5 See Glenn Collins, Judge Who Ruled Pro-TobaccoNamed to Hear Companies' Suit, N.Y. TIMES, Aug. 15, 1995, atDI. Tobacco has been called a "Southern institution." Id.

Sean Cronin, Clinton Wants To Save Youth From Ciga-rettes, IRISH TIMES, Aug. 26, 1995, at 11.

5" President's Anti-Smoking Initiative Faces FormidableChallenges, BALTIMORE SUN, Aug. 11, 1995, at 14A.

" Cigarette Manufacturers Sue FDA, Saying Agency Can-not Regulate Tobacco, BNA HEALTH CARE DAILY, Aug. 14,1995. Tobacco companies including Phillip Morris Inc., R.J.Reynolds Tobacco Co., Brown & Williamson Tobacco Co., Lig-gett Group Inc., and Lorillard Tobacco Co. all filed suit claim-ing that only Congress, not the FDA, has jurisdiction to proposetobacco advertising regulations. Id. The advertising companyCoyne-Beahmn Inc. has focused its argument on the FirstAmendment ramifications resulting from the proposed restric-tions. Id.

" Id. The tobacco producers point to 80 years of legal prece-dent indicating that only Congress has the jurisdiction to regu-late tobacco. Id. They add, that on 20 different occasions, Con-gress considered and rejected legislation which would give theFDA control over tobacco regulation. Id.

" Advertising and promotion of an illegal activity is not af-

der to successfully impose the ban on tobacco adver-tising, the government must satisfy the four partCentral Hudson standard for evaluating commercialspeech protection under the First Amendment.

A. The Commercial Speech in Question MustConcern a Lawful Activity and Must Not beMisleading

The commercial speech in question must concerna lawful activity "o and must not be misleading."'Tobacco advertising has been limited to certain me-dia such as magazines, newspapers, billboards, andsponsorship labels at sporting events. The govern-ment ignored these methods of promotion after it im-posed regulations in the 1970's eliminating tobaccoadvertising from electronic media. In the form inwhich it exists today, tobacco advertising is a lawfulactivity.62

In Virginia State Bd. of Pharmacy v. VirginiaCitizens Consumer Council," the Court struck downa ban that restricted the advertising of prescriptiondrug prices in newspapers on the basis that the saleof prescription drugs was an "entirely lawful activ-ity."6 However, supporters of the proposed ban ar-gue that the tobacco advertising in its present state ismisleading because it portrays an inaccurate, glori-fied image of smoking to the nation's young people."They claim that such advertising is illusory becauseit attempts to make a harmful product appear desir-able."0 Furthermore, they assert that unlike the ordi-nary embellishment often associated with product

forded First Amendment protection. See, e.g., Pittsburgh PressCo. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376,388 (1973) (prohibiting a newspaper from publishing advertise-ments promoting illegal products or services).

61 Central Hudson Gas & Elec. Corp. v. Public Serv.Comm'n, 447 U.S. 557, 563 (1980). Restrictions on false andmisleading commercial speech are permissible. See Friedman v.Rogers, 440 U.S. 1, 9 (1979).6' The actual sale of tobacco products is a separate issue.

Just as it is illegal to sell alcohol to teenagers, the same appliesto tobacco products. Eighteen years old is the legal age topurchase cigarettes. Perkins, supra note 54, at All.

03 425 U.S. 748 (1976).o Id. at 773." See Clinton Transcript, supra note 3. In his address au-

thorizing the ban, President Clinton stated that "[w]hen JoeCamel tells young children that smoking is cool, when billboardstell teens that cigarettes will lead to true romance, when Vir-ginia Slims tells adolescents that cigarettes may make them thinand glamorous, then our children need our wisdom, our guid-

* ance and our experience." Id." Polin, supra note 5, at 113.

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promotion, tobacco advertising actually deceives con-sumers about the harmful consequences of tobaccouse.

6 7

In response to this contention proponents of unfet-tered tobacco advertising point out that a great num-ber of advertised products do not disclose their po-tentially harmful effects.68 Makers of fried foods orthose high in sodium are not forced to state in pro-motions that their products may lead to heart diseaseand clogged arteries, and that they may cause highblood pressure. As required by law, the producerslist only the ingredients and nutritional value of theproducts and rely on the consumer to make an edu-cated purchase. However, many products intendedfor adults are attractive to teenagers, who because oftheir age, may lack the full understanding of thebenefits or detriments which stem from using theproducts. This does not justify an outright ban onsuch advertising because, consequently, the informa-tive value of the advertisements will be kept fromadults.69 A comprehensive regulatory ban, such asthe one proposed, will institute a de facto ban onoutdoor tobacco advertising in many urban areas dueto restrictions based on proximity of schools withincity limits.7

0

There is little merit in asserting that FirstAmendment protection should not be accorded com-mercial speech that advertises a legal but harmfulproduct. In Lamar Outdoor Advertising, Inc. v. Mis-sissippi State Tax Comm'n,7 ' the Court refused toimpose a ban on advertising alcoholic beverages inMississippi based on the State's assertion that alco-hol is a product which is considered "hazardous be-yond controversy." 7 The Court determined thatthere is no "hazardous exception" to the FirstAmendment and that such an exception could notexist without "destroying the commercial speechdoctrine."

7 1

What next potentially harmful product will incitea purist reaction banning its promotion becauseyoung people may misunderstand its effects? Will itbe caffeine, or foods heavy in fat or sugar? If the

e7 Id. at 114.

*a See Sullum, supra note 8, at G1.

6 See Hernandez, supra note 50 at 12. The proposed regu-lations directed at children will blanket virtually all tobacco ad-vertising in large cities, which often carry several school districts.Under the regulations, tobacco advertisements would be prohib-ited within 1,000 feet of a schools and playgrounds. Id.

70 Id.71 701 F.2d 314 (5th Cir. 1983).72 Id. at 324.73 Id.74 Polin, supra note 5, at 114.

restrictions are implemented, will the simple appear-ance of cigarettes in movies or on television thereaf-ter be banned because celebrities smoking may nega-tively influence children? It is not improbable tosuspect that a ban on tobacco advertising will lead togags on manufacturers of other products that at anygiven time may be considered politically incorrect. Ifthe public develops a negative sentiment towards cer-tain products, market mechanisms, not the govern-ment, should decide whether these products survive.

Tobacco manufacturers are not advocatingthrough their advertisements that their products per-form a specific function or achieve a specific result.Instead, at least one commentator concluded that de-ceptive advertising exists where products claim re-sults, but in reality fail to perform.7 4 Comparison ofgoods such as medicines, 75 or tires76 to tobacco failsto recognize that tobacco advertising is not based onany specific utility. The utility function of a productcan be objectively determined by the public. On theother hand, a claim of a product to be tasty or plea-surable is purely subjective and, thus, it would bedifficult, if not impossible, to determine whether sucha claim is deceptive.

The First Amendment can be a double edgedsword. Advertisements can portray smoking as hip,individualistic, and vigorous. But the same can bedone with fast-food. Yet the Federal Trade Commis-sion ("FTC")7 is not ready to ban advertisements ofcheeseburgers and fries loaded with cholesterol sim-ply because a percentage of the public is "conned"by advertisements using thin models to depict thatfast food is healthy. Even if it could be shown that apercentage of teens smoke because of the glamorousimage and attractive characters in the ads, that factdoes not demonstrate that the reason for cigaretteconsumption is to make smokers look and feel likethe individuals in the commercials.

Unlike the manufacturers of other "unhealthy"products, the tobacco industry has been compelled todispel any misunderstandings that may involve thehealth risks related to tobacco use. Recently, Massa-

76 See Rhodes Pharmaceutical Co. v. FTC, 208 F.2d. 382

(7th Cir. 1953), modified, 348 U.S. 940 (1955)(holding that anadvertisement was deceptive even if as little as nine percent ofthe public interpreted its mention of a "cure" for arthritis tomean that the product actually cured the disease).

76 See Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246(6th Cir. 1973).

7' FEDERAL TRADE COMMISSION, STAFF REPORT ON THE

CIGARETTE ADVERTISING INVESTIGATION 2-2 (1981). TheFTC is responsible for detecting deception in advertising. Thestandard is whether a substantial portion of the public isdeceived by the advertising. Id.

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chusetts introduced a bill that, if adopted, wouldmake it the first state to require tobacco companiesto disclose the amounts of "toxic chemicals" in theirproducts.7 8 Warning labels, which the tobacco indus-try has been required to place on its products sincethe 1960s, inform the public about potential healthrisks that may arise from use of tobacco products. 9

These labels serve to counterbalance the public'smisunderstandings about the effects of tobacco use.80

The public is very aware of the dangers of smok-ing.8 Americans have been conditioned by SurgeonGeneral warnings about the dangers of smoking forthree decades.82 The existence of clear, black andwhite warnings on tobacco packaging subdues theargument that the tobacco industry's expensive pro-motions are able to completely drown out informa-tion about the potential health hazards of itsproducts.88

Therefore, the government would likely fail tomeet the burden of showing that tobacco advertisingis intended to mislead young people. The criteria tobe used to determine whether an advertisement isaimed at a seventeen year old, and is thus illegal, orat an eighteen or nineteen year old, and is thus legal,are difficult to identify. 84 Advocates of the ban pointto advertisers' clever use of a cartoon icon, JoeCamel, in the sale of cigarettes to youngsters.8" But,the use of cartoons in advertising is not rare, and attimes, it targets adults by promoting an activity orbusiness that is specifically adult oriented." More-over, many other popular tobacco advertisements in-clude adults engaging in various activities.87 Howdoes the woman in Virginia Slims advertisementsspecifically target adolescents by telling them thatcigarettes will make them thin and attractive?88 Itwould take a substantial stretch to make the casethat these advertisements also specifically intend tomislead children.

"s Tobacco: Companies Face Setbacks In Two Court Fights,

HEALTH LINE, Sept. 5, 1995. "Specifically, the proposal wouldrequire tobacco firms 'to disclose the ratio of nicotine, ingredientsand additives-such as arsenic, ammonia and hydrogen cyanide-intheir products to the state Department of Health." Id.

"' See Bojorquez, supra note 52, at SCI. Warning labels ap-pear on the tobacco products and advertisements but are not dis-played on promotional gear. Id.

80 See supra note 15 and accompanying text. The warninglabels have been rotated to provide a broader informative basefor the public about the effects of tobacco use.a' CROSSFIRE, CNN, Aug. 9, 1995 (Transcript #1424)

(statement of Sam Kazman, General Counsel, Competitive En-terprise Institute). One commentator noted that "[p]oll after pollshows that the American public ranks smoking among the fourmost dangerous activities, up there with alcohol, up there withfirearms ... Study after study shows even kids know the risks of

In its present state, tobacco advertising satisfies thelegality requirement of Central Hudson. Tobaccoadvertising should remain lawful until clear evidencedemonstrates that it specifically targets children andincites them to violate the prohibition on sale of ciga-rettes to minors. Also, tobacco advertising has notbeen shown to be clearly deceptive. The existingcautionary measures, such as the requirement ofwarning labels on packages specifically counter andeliminate any misleading effects of tobacco advertis-ing. Moreover, it appears that the proposed regula-tions are themselves deceptive. The public should beweary of a paternalistic campaign run under theguise of protecting young people, but which in es-sence seeks to eliminate a product from the market.Prohibition should not be sought at the expense ofspeech. If at all necessary, it should be overt.

In light of these considerations, reviewing courtswould likely determine that tobacco advertising isentitled to limited First Amendment protection be-cause it satisfies the first requirement of the CentralHudson commercial speech test.

B. Can the Government Demonstrate a SubstantialInterest in Support of Its Proposed Regulation?

Once it is determined that the commercial speech,which the government seeks to regulate, involves le-gal products or activities and is not misleading, thestate will need to assert a substantial interest as abasis for its restrictions pursuant to the second prongof Central Hudson."9 According to the recent an-nouncements by the President, the government in-tends to protect the youths of America from the illeffects of smoking by restricting the advertising of to-bacco.90 The inherent governmental interest is to

smoking." Id." See supra note 10.83 Id.84 See Sullum, supra note 8, at GI.

8 See Clinton Transcript, supra note 3.86 One commentator gave the example of Snoopy and Pea-

nuts characters which are used by Metropolitan Life, to sell in-surance. This Week With David Brinkley, ABC NEws, Aug.13, 1995 (Transcript #720) [hereinafter Brinkley].

" Marlboro ads, for example, often feature adult malesworking or relaxing in an outdoor ranch setting..

11 The President has blamed Virginia Slims for telling "ado-lescents that cigarettes may make them thin and glamorous."Brinkley, supra note 86.

"9 Central Hudson Gas & Elec. Corp. v. Public Serv.Comm'n, 447 U.S. 557, 564 (1980).

90 See Clinton Transcript, supra, note 3.

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preserve the health and safety of young people.91

The government asserts that its interest in restrictingtobacco advertising furthers the public policy associ-ated with the prohibition of cigarette sales tominors.

92

In his announcement of the ban, President Clintonreferred to the health risks of smoking and its influ-ence on the young."3 Approximately 3,000 youngpeople begin to smoke each day and 1,000 will die asa result of a smoking related illness.'

Because sale of cigarettes to minors is illegal in theUnited States, the government has an obvious inter-est in and seeks to restrict tobacco advertising basedon the notion that it contributes to these illegalsales. 5 The government asserts its interest in limit-ing the exposure of minors to stimuli which en-courage them to purchase cigarettes, with the objec-tive of reducing the number of minors buyingcigarettes and, thereby, decreasing the number of il-legal transactions.9 6 However, by purchasing ciga-rettes, minors themselves do not expressly violateprohibitive ordinances in most states.9" These ordi-nances focus their restrictions on those who actuallysell the cigarettes to young people.9 Therefore, if thenumber of minors who seek to purchase cigarettesdecreases, the number of illegal transactions will alsodecline.9

The Supreme Court has generally been lenient inrecognizing a substantial governmental interest whenapplying the second prong of the Central Hudsontest to proposed advertising bans. For example, inPosadas de Puerto Rico Assoc. v. Tourism Co. of

9' Id. The President announced a "broad executive action toprotect the young people of the United States from the awfuldangers of tobacco." Id.

92 Id.93 Id.94 Id.

"' See Hernandez, supra note 50, at 12. President Clintonand White House counsel, Abner Mikva both advocated that thetobacco advertisements are targeting children and therefore pro-mote an unlawful activity. In the defense of the First Amend-ment, the President has said "[i]t cannot be a violation of thefreedom of speech in this country to say that you cannot adver-tise to entice people to do something which they cannot legallydo. So I just don't buy the First Amendment argument. It's justnot true." Id.

96 Id." See, e.g., MD CODE ANN. CRIM. LAW § 404 (1992). The

Maryland Code declares that it is unlawful for any person en-gaged in the manufacture or sale of cigarettes to sell, barter, orgive cigarettes to any individual under the age of 18 years. Id.98 Id."' Penn Advertising of Baltimore, Inc., v. Mayor of Balti-

more, 862 F. Supp. 1402, 1406 (D. MD. 1994). The BaltimoreCity Council asserted that Ordinance 307, which prohibits ciga-

Puerto Rico,00 the Supreme Court determined thatin restricting casino gambling advertisements,, thePuerto Rican government had a substantial interestin decreasing the demand for casino gambling by itscitizens.""1 Also, in Penn Advertising of Baltimore,Inc. v. Mayor of Baltimore,' the United StatesDistrict Court for the District of Maryland con-cluded that, by seeking to restrict tobacco advertisingon billboards within the city, the City of Baltimoredemonstrated a substantial interest in furthering theprohibition of cigarette sales to minors.' 03 Based onthese considerations, it is reasonable to assume thatthe government's asserted interests in restricting to-bacco advertising would satisfy the second prong ofthe Central Hudson test.

C. Do the Proposed Restrictions Directly Advancethe Governmental Interest?

The third prong of the Central Hudson test re-quires the government to demonstrate a precise con-nection between its proposed commercial speech re-strictions and the interest it seeks to accomplishthrough their enforcement.' 0 ' In applying this stan-dard to the recently proposed tobacco advertisingban, the reviewing courts need to evaluate the pur-pose for the regulations. Accordingly, the govern-ment would need to demonstrate a direct connectionbetween the tobacco advertising and reduction in to-bacco consumption by minors.

As with the second Central Hudson prong, courts

rette advertising on billboards located in certain designated zoneswithin the city of Baltimore, furthered the public policy behindSection 404 and thus prevented the purchase, and consumptionof cigarettes by minors. Id. The United States District Courtfound that the "City [had] a substantial interest both in promot-ing compliance with § 404 and in advancing the public policywhich underlies § 404." This interest satisfies the second prongof the Central Hudson test. Id.

'o 478 U.S. 328 (1986).101 Id. at 343. The Court limited its deliberations on this

issue and declared only that it has "no difficulty in concludingthat the Puerto Rico Legislature's interest in the health, safety,and welfare of its citizens constitutes a 'substantial' governmen-tal interest." Id.

102 862 F. Supp. 1402 (D. MD. 1994). This was the firstruling of its kind in the country. Marcia Myers & Lyle Dennis-ton, Court Upholds City Ban On Tobacco, Alcohol Signs, BAL-TIMORE SUN, Sept. 1, 1995, at 1A.

10' See Penn Advertising, 862 F. Supp. at 1406. The City'saim to "prevent the purchase, and thus consumption, of ciga-rettes by minors" demonstrated "certainly a sufficiently substan-tial interest for the purposes of the Central Hudson test." Id.

1' Central Hudson Gas & Elec. Corp v. Public Serv.Comm'n, 447 U.S. 557, 566 (1980).

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have generally been lenient in their application ofthe third standard which requires a direct link be-tween the proposed restrictions and the governmentalinterest.105 However, in Edenfield v. Fane,10 6 the Su-preme Court appeared to tighten the "intermediatelevel" of scrutiny which previously had been appliedto challenges on the restraints on commercial speech.The Supreme Court stated that the proposed restric-tions must alleviate the alleged harms to a materialdegree. 0 ' Based upon this statement, the plaintiffadvertising company in Penn Advertising arguedthat the Edenfield Court introduced a higher burdenof proof on the government, which required a "fact-intensive inquiry" and not simply an assertion oflegislative judgment.,' 8 However, the District Courtin Penn Advertising of Baltimore Inc. v. Mayor ofBaltimore was not ready to recognize an increasedlevel of scrutiny for commercial speech analysis andreverted to the traditional intermediary standard.'0 9

In relying on this hardly persuasive interpretation ofEdenfield, the FDA would seek to show only thatthe proposed ban directly advances the government'sinterest in preserving the health of young people.But, the District Court in Penn Advertising appearsto have ignored the intent of the Edenfield opinion.By increasing the scrutiny for commercial speech inEdenfield, the Supreme Court seemed to be setting a

105 See Dunagin v. Oxford, 718 F.2d 738 (5th Cir.

1983)(finding it necessary to examine any scientific evidence asto whether a link existed between alcohol advertising and con-sumption); see also Posadas de Puerto Rico Assoc. v. TourismCo., 478 U.S. 328, 341 (1986)(accepting without examining evi-dence, Puerto Rico Legislature's assertion that casino advertisingwould increase gambling); Central Hudson, 447 U.S. at 569(finding an immediate connection between advertising and de-mand for electricity). "Central Hudson Gas & Electric wouldnot contest the advertising ban unless it believed that promotionwould increase its sales." Id.

100 113 S. Ct. 1792 (1993) (cautioning that the governmentalburden is not met by mere speculation but rather that the de-clared harms must be real and the imposed restrictions must al-leviate them to a material degree).

107 Penn Advertising, 862 F. Supp. 1402, 1406 (D. MD.1994) (citing Edenfield, 113 S. Ct. at 1800).

108 Id. at 1407-08. Penn argued that Edenfield increased thelevel of scrutiny for commercial speech restrictions and that it is"inappropriate for the Courts to defer to a legislative judgmentthat advertising increases consumption" of alcohol. Id.

109 Id. at 1408-09 (stating that it was unable to find lan-guage specifying in Edenfield the precise level of scrutiny withwhich this Court must review the Ordinance). The governmentmust "demonstrate that the harms it recites are real and that itsrestriction will in fact alleviate them to a material degree." Id.The Court allowed room for legislative judgments and foundthat the link cited by the government in the case at hand was"more immediately apparent." Id.

tone solidifying the constitutional protection affordedto commercial speech.

The courts have given deference to the legislativejudgment that the purpose of advertising is to in-crease consumption." In response, Tobacco adver-tisers asserted that the purpose of cigarette advertis-ing is not to increase overall consumption but ratherto increase market share by winning over smokersconsuming competing brands."' Failing to see thereason why so much energy and expense".. is de-voted to promotion of tobacco products solely to in-crease market share at the expense of competitors,the courts have not been persuaded by this argu-ment. " The FTC claims that tobacco advertising isnot aimed at brand promotion, as the industry main-tains, but rather to increase tobacco consumption." 4

In 1989, Surgeon General C. Everett Koop concededthat no study has yet indicated a link between adver-tising and tobacco consumption." 5

Whether or not tobacco advertising intends or ac-tually causes increased consumption, a problem re-mains in establishing the nexus between advertisingand consumption of tobacco products by minors, par-ticularly because minors are prohibited by law frompurchasing tobacco products. Assuming arguendothat tobacco advertising seeks to increase sales andconsumption by adults, it may be more difficult to

110 See Anheuser-Busch v. Mayor of Baltimore City, 855 F.

Supp. 811, 818, afl'd, 63 F. 3d 1305 (4th Cir. 1995); see alsoPenn Advertising, 862 F. Supp. 1402, 1410 (D. MD. 1994).... Penn Advertising, 862 F. Supp. at 1409."'2 The tobacco industry spends approximately $6.2 billion

on marketing and advertising. David G. Savage, Tobacco AdCurbs Face Uphill Fight, Experts Say, L.A. TIMES, Aug. 14,1995, at A4.

118 See Penn Advertising, 862 F. Supp. at 1410. "It is totalsales, profits, that pay the advertiser; and dollars go into adver-tising only if they produce sales. Money talks: it talks to theyoung and the old about what counts in the marketplace of oursociety." Id. (quoting Dunagin v. Oxford, 718 F.2d 738, 749(5th Cir. 1983)).

1. Clara Sue Ross, Pushing Puffin Post-Posadas, 56 U. CIN.

L. REV. 1461, 1478 (1988).1"I U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,

REDUCING THE HEALTH CONSEQUENCES OF SMOKING: 25YEARS OF PROGRESS; A REPORT OF THE SURGEON GENERAL

516-17 (1989):There is no scientifically rigorous study available to the publicthat provides a definitive answer to the basic question of whetheradvertising and promotion increase the level of tobacco consump-tion. Given the complexity of the issue, none is likely to be forth-coming in the foreseeable future .... [The analysis cited by theSurgeon General] also concluded that the extent of influence ofadvertising and promotion on the level of consumption is un-known and possibly unknowable.Id.

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demonstrate that the same advertising also targetsminors. In light of the existing prohibition of tobaccosales to minors, a link between tobacco advertisingand consumption by young people is presumably lessapparent. If tobacco advertising is generally consid-ered a lawful activity, how can it seek to advanceconsumption by minors, a clearly unlawful transac-tion? Although young people may easily be able torecall cigarette ads, this correlation does not necessa-rily indicate that minors are likely to smoke becauseof the advertising.

Arguably, advertising is more likely to affect thosewho can relate to it because of the products beingpromoted. Consequently, cigarette advertisementsmay have a stronger impact on those teens who al-ready smoke. Although recently gathered data indi-cates that a link to consumption by minors may ex-ist, it is uncertain."' The number of teens whosmoke has increased in recent years,"' but teenagersstill account for just $1.26 billion of total sales oronly 2.7 percent.11 Moreover, research has shownthat when it comes to smoking, teenagers are moreinfluenced by their peers, their perceptions of rele-vant risks and benefits, and the presence of smokersin the home, rather than by advertising." 9

Considering the judicially-recognized propositionthat tobacco advertising increases consumption andthe lack of substantial empirical evidence to prove it,the direct advancement of the government's interestin restricting tobacco advertising to protect the healthof minors can only be surmised at best. Therefore,the third prong of the Central Hudson test wouldnot be fulfilled.

lie Kids Mustn't Smoke, supra note 2, at A18. Ever sincethe "Joe Camel" advertising campaign came into effect, the"share of teens who smoke Camels jumped from 3 to 13 percent;the proportion of adults choosing Camels stayed stable." Id. Thepercentage of eight graders who have smoked in the past 30 daysincreased 30 percent between 1991 and 1994. See Gleick, supranote 17, at 33. It has been estimated that of all adult smokers, 90percent started smoking before the age of 20. Id.... Tony Jackson, Too Soon To Stub Out Big Tobacco:

Clinton's Campaign Is Unlikely To Lead To a Sharp DeclineIn Smoking In the U.S., FIN. TIMES, Aug. 12, 1995, at 9. Lastyear, consumption of cigarettes in the U.S. at 485bn units, was21 percent lower than the peak in 1977. This was the first timein 10 years that it has remained consistent with the previousyear. Since 1990, the proportion of the U.S. population smokinghas been consistently around 25 percent. Id.

D. Are the Proposed Restrictions on Tobacco Ad-vertising Narrowly Tailored to Meet the Govern-ment's Interest?

The fourth and final prong of the Central Hudsonanalysis requires that the proposed governmental re-strictions be narrowly tailored and serve as the leastrestrictive means of accomplishing the government'sinterest.120 In Central Hudson, Justice Brennan ex-pressed his concern "whether suppression of infor-mation concerning the availability and price of a le-gally offered product is ever a permissible way forthe State to 'dampen' demand for or use of the prod-uct."1 First Amendment protection of commercialspeech serves as an "alternative" to paternalistic gov-ernment regulations because it allows people to makea free choice about a product based on the informa-tion provided to them. 22 It is because of the infor-mational value offered by advertising that regula-tions seeking to limit it must be narrowly drawn.

Recently, the Supreme Court has appeared to re-lax the fourth prong of the Central Hudson test byrequiring only a reasonable link between the govern-ment's restrictions on commercial speech and the in-terest involved. 12 The Court explained that themeans used by the government need not be the leastrestrictive but must be narrowly tailored. 24 Adver-tising restrictions, which establish a de facto ban onadvertising of tobacco altogether, can reasonably befound to constitute a sweeping measure that is toobroad to pass this test. The significance of the gov-ernment's inherent encroachment may be further ex-acerbated when considering that, having chosen tolegalize the sale of tobacco, it now seeks to reducedemand for this product by censoring commercialspeech. It should be noted that in order to avoid theFirst Amendment challenge, the government mayseek the most drastic measure in its arsenal, which isa complete prohibition on the sale of tobacco. The

118 Robert T. Garret, Tobacco Plan a Free-Speech Issue?

Don't Kid Yourself, COURIER-JOURNAL, Aug. 13, 1995, at ID."' See Sullum, supra note 8, at Gl.121 Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm'n, 447 U.S. 557, 570 (1980).121 447 U.S. at 574 (Blackmun, J., concurring).122 Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, 425 U.S. 748, 770 (1976)." Board of Trustees of State Univ. v. Fox, 492 U.S. 469

(1989).124 Id. at 480. The Court explained that the required link is

"not necessarily perfect, but reasonable; [it] represents not neces-sarily the single best disposition but one whose scope is in 'pro-portion to the interest served'; [one] that employs not necessarilythe least restrictive means but,... a means narrowly tailored toachieve the desired objective." Id.

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TOBACCO ADVERTISING

greater power to completely ban tobacco sales neces-sarily includes the lesser power to ban tobacco adver-tising.1"5 Although outright prohibition on the sale oftobacco would not specifically implicate the FirstAmendment, it would, nonetheless, provide only a."Pyrrhic victory" for tobacco advertisers consideringthey would be out of business. 1

26

In choosing to evaluate potentially less restrictivealternatives, as per the fourth prong of the CentralHudson test, the courts preserve the integrity of FirstAmendment commercial speech protection. Strict ap-plication of this standard to the proposed tobacco ad-vertising restrictions demonstrates that they are notthe least restrictive means of accomplishing the gov-ernment's interest. The reviewing courts shouldcarefully evaluate less restrictive options.

As it now stands, the proposed ban is over inclu-sive in its coverage, because in attempting to keepcigarettes away from minors, it also severely in-fringes on the freedoms of adults to smoke. The banon cigarette vending machines 127 exemplifies govern-mental overkill.1 28 Although sales through vendingmachines do not directly implicate the First Amend-ment, the ban is slipped under the general blankettheme of tobacco advertising limitations. Childrenmay be able to easily buy cigarettes from vendingmachines, which are often unattended, but theywould not be able to obtain them from places whichprevent underage access (e.g., bars, nightclubs).1 9

The same argument applies to the proposed maga-zine advertising restrictions. Tobacco advertising inmagazines is already low and has fallen drasticallyduring the last decade.' 30 By restricting tobacco ad-vertising in publications that have a fifteen percentor more youth readership, the government is effec-tively restricting the up to eighty-five percent adultreaders of those magazines from receiving the

128 See Posadas de Puerto Rico Assoc. v. Tourism Co. of Pu-erto Rico, 478 U.S. 328, 345 (1986). The Court applied thisanalysis to the wholesale prohibition of casino gambling in Pu-erto Rico. Id.

126 Id. "It would just as surely be a strange constitutionaldoctrine which would concede to the legislature the authority tototally ban a product or activity, but deny to the legislature theauthority to forbid the stimulation of demand for the product oractivity through advertising on behalf of those who would profitfrom such increased demand." Id.

127 Research shows that cigarette vending machines are themost common means through which the youngest teens obtaincigarettes. Kids Mustn't Smoke, supra note 2, at A18.

128 Sullum, supra note 8, at G1.129 Id.

130 See Hernandez, supra note 50, at 12. According to Mag-

azine Publishers of America, by mid 1995, tobacco advertising in200 consumer magazines (about 85 percent of the industry)

information." 1

The proposed restrictions also prohibit tobacco ad-vertising within 1,000 feet of any school.' 2 Thisprovision appears to be more reasonable because itsapplication, in many instances, is not overly restric-tive. In Penn Advertising,"'3 the U.S. District Courtdetermined that Baltimore's restrictions on billboardadvertising were directly related to the City's interestin the health of minors.' 34 A distinction should berecognized between the Penn Advertising'85 rulingand the issues raised by the proposed FDA restric-tions. Baltimore sought only to ban outdoor billboardadvertising in certain areas of the city. 8 Its restric-tions did not affect any other types of tobacco adver-tising, and as a result, they were not overly restric-tive."'I The Baltimore ban still allowed for tobaccoadvertisements in other areas of the city. Contrarilythe FDA's proposed restrictions sweep more broadlyby infringing on other means and methods of adver-tising tobacco instead of limiting the restriction tojust billboards.

Potential problems also exist with the "1,000 feet"billboard restriction when it is to be applied withincity limits. Many urban areas contain schools, whichare located near each other, and as a result, it wouldbe difficult, if not impossible, for advertisers to findzoned areas where they could legally display theirads.

President Clinton stated that "[aldults make theirown decisions about whether or not to smoke". 8'However, can they if so much of the informationalvalue they receive from advertising may be effec-tively wiped out? Under the guise of protecting teen-agers, the government seems to be making this deci-sion for them.

A ban on promotional brand name tobacco adver-tising carries some validity. Although, because pro-

made up less than three percent of all advertising. Eight yearsago it constituted about seven percent to eight percent. Id.

181 Id.

132 See discussion, supra note 101 and accompanying text."' Penn Advertising of Baltimore, Inc. v. Mayor of Balti-

more, 862 F. Supp. 1402 (D. MD. 1994).134 Id.136 Id.

126 Id. at 1404.

12I Id. at 1414. " 'Billboards [in the city] are conspicuously

absent from more affluent communities. They present a starkcontrast to adolescents between the lifestyle depicted in the ad-vertisement and the actual neighborhood surrounding themthereby enhancing the attractiveness of the advertised product.' "Id. at 1411 (citing Anheuser-Busch v. Mayor of Baltimore City,855 F. Supp. 811, 818, aff'd, 63 F. 3d 1305 (4th Cir. 1995)).

138 See Clinton Transcript, supra note 3.

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motional items do not display warning labels theycan, arguably, be misleading. 39 A prohibition onpromotional merchandise also raises other red flags.Because it infringes on commercial speech rights ofadvertisers, the ban may implicate due process is-sues. a' ° By prohibiting the use of trademarks orcopyrighted material without statutory authorization,the FDA would likely deprive tobacco manufacturersof their property rights without due process of law,taking their property without just compensation.''Moreover, proposed restrictions such as the ban onmail-orders of tobacco products are limitations oncommerce which can only be regulated byCongress.'

2

Several less restrictive alternatives to the advertis-ing ban should be considered. Perhaps the strongestargument can be summed up in favor of a more ef-fective anti-smoking campaign. The FDA proposalwould require the tobacco industry to spend $150million a year on an anti-smoking campaign. "" As itis, the tobacco industry currently spends approxi-mately $6 billion on advertising.144 Perhaps a com-promise could be reached in which the industrywould agree to pay a higher premium on the anti-smoking campaign in exchange for retaining theiradvertising rights. Such an arrangement might ulti-mately be less expensive than the inevitable long liti-gation. After all, anti-smoking advertising is not newto the tobacco industry. It was required to pay forbroadcast anti-smoking advertisements prior to1971.

An anti-smoking campaign could also be subsi-dized with a government imposed "sin tax" on to-bacco products. Although the consumer would sharethe burden of higher prices with tobacco producers,

... Teenagers can legally purchase promotional tobacco mer-chandise such as hats, key chains, and T-shirts. Bojorquez,supra note 52, at SC1. Cigarette expenditures for promotionalitems quadrupled from $184 million to $756 million between1991 and 1993. Id.

140 Hernandez, supra note 50, at 12; see also U.S. CONST.

amend. V.141 Id.'4' U.S. CONST. art. 1, § 8(3).140 See Kids Mustn't Smoke, supra note 52, at A18.144 Id. According to Competitive Media Reporting, in 1994

tobacco companies spent $443 million on measured advertising,$276 million on magazine ads, and $121 million on outdoor pro-motions. See Teinowitz & Sachs, supra note 13, at 1.

"' See supra notes 10-15 and accompanying text.146 Let Congress Act On Smoking Curbs, GREENSBORO

NEWS & RECORD, Aug. 12, 1995, at AS. With the $5 cigarettepack, Canada has demonstrated that there seems to be a point of"diminishing returns in punitive tobacco" taxation because blackmarkets begin to thrive. Id. Nevertheless, the transition into a

such a sacrifice would be warranted if it could placethe price of cigarettes and other tobacco items out ofreach of most children. Doing so would accomplishthe government's interest in promoting betterhealth.'

4 6

Anti-smoking campaigns have demonstratedpromising results among the youth population. It hasbeen estimated that eight out of ten youngsters reachthe age of majority without becoming habitual smok-ers.' 47 For example, African-American anti-smokinggroups have enlisted churches, parents and schoolgroups to help discourage underage smoking. a'4

Their efforts appear to be paying off because only4.4 percent of black teens smoke compared withnearly 23 percent of white teens.149

In San Jose, California, an anti-smoking groupwas able to convince the local law enforcement au-thorities to conduct sting operations on vendors whosell to children.'" A stricter enforcement of the pro-hibition law could make any potentially enticing to-bacco advertising irrelevant, if such enforcement ac-complishes a decline in teen smoking.

In Massachusetts, tobacco-control officials per-suaded 200 businesses to give discounts to childrenwho would be willing to sign a smoke-free pledge.' 5'The state contributed to this effort with extensiveanti-smoking advertisement campaigns. The resultwas a forty percent reduction in cigarette sales toteens since 1994.52 In addition to the anti-smokingadvertisement campaigns aimed at children, thereshould be a more expansive effort to involve parentsin the campaign. Arguably, even with countless mod-ern-day distractions, parents still have the greatestinfluence over their children's behavior.'

The proposed tobacco advertising restrictions fail

black market system takes a long time and smoking amongyoung people may be sufficiently curbed by that point. Id.

147 Id.148 Gleick, supra note 17, at 33.149 Id. In fact, smoking amongst African-American teenagers

fell from 26 percent to about 4.4 percent in the past 20 years.Bojorquez, supra note 52, at SCI.

150 Gleick, supra note 17 at 33. The results of the sting op-erations were encouraging. In a three year period sales to minorsdropped by 60 percent. Seattle, Washington which has used sim-ilar measures, had a 45 percent reduction rate over the sametime span. Id.

181 Id. The group of businesses included fast food operationspopular amongst teens, such as McDonald's. Id.

1I1 More than 25,000 children took the Massachusetts anti-smoking pledge and the State added $14 million to the anti-smoking advertisement campaign. Id.

1"I Bob Garfield, Joe Camel Lights Fire Under Clinton,Constitution, ADVERTISING AGE, Aug. 14, 1995, at 3. Althoughone commentator has expressed concern with excessive "demon-

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to establish a significant link to the government's in-terest in protecting the health of children. They are,for the most part, over-inclusive in that they virtu-ally eliminate adults' access to the informationpresented in the advertisements. Moreover, severalless restrictive means of accomplishing the govern-ment's purpose exist and should not be ignored atthe expense of a major setback to First Amendmentcommercial speech protection.

IV. CONCLUSION

The President and the FDA hope to achieve thelaudable goal of protecting the health of America'syouth from the harmful effects of tobacco. Themeans intended to achieve this objective are the re-cently proposed tobacco advertising restrictions. As aresult of their commercial speech infringements, theregulations raise valid First Amendment objections.Reviewing courts would likely determine that theproposed restrictions should not be upheld because

ization of cigarettes" claiming that doing so would make smok-ing so taboo "only enhanc[ing] the mystique of the forbidden to-

they fail to satisfy the established constitutional stan-dards protecting commercial speech. There is a lackof solid evidence demonstrating that tobacco advertis-ing targets and induces children to consume tobaccoproducts. Although, the government's interest isvalid, it can not be directly advanced by the proposedrestrictions without being overly inclusive. Moreover,several less constitutionally intrusive alternativescould be utilized to eliminate tobacco consumptionby children. The proposed advertising ban is pater-nalistic and condescending in its application becauseit manipulates the behavior of the public by restrict-ing its exposure to a legally sold product. One doesnot need to be a teenager or a smoker to be con-cerned about the potential for subsequent govern-ment infringements founded upon a precedent up-holding the present regulations. The FirstAmendment was established to guard against gov-ernment sponsored truth, even in the realm of com-mercial speech.

bacco fruit." Id.

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