FDA regulation of tobacco advertising and youth smoking. Historical, social, and constitutional perspectives

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.