(To understand some of the issues in play here, you should know the difference between the strict scrutiny test, the intermediate scrutiny test, and the Central Hudson test.)
Image banned in 1997 as part of the tobacco settlement. Research found that children were attracted to smoking by this and similar images.
Tobacco use was largely unregulated until the 1940s and 50s, although some state laws prohibited sale of cigarettes to minors.
In 1964, the US Surgeon General’s report on smoking and health flatly stated that tobacco causes lung cancer. A mandatory cigarette warning label was proposed and passed through the Federal Trade Commission.
In 1970, Congress passed the Public Health Cigarette Smoking Act, which banned cigarettes ads on the radio or television. It also required an updated warning on the cigarette packages which read: “Warning: The Surgeon General has determined that cigarette smoking is dangerous to your health.” The Federal Communications Commission backed the ban on radio and TV tobacco ads, arguing that since the topic of smoking is controversial, broadcasters were violating the Fairness Doctrine when airing these commercials because they did not give equal time to the opposing viewpoint that smoking is dangerous.
It’s important to note that the actual regulation of tobacco products, nicotine levels and additives through the Food and Drug Administration did not occur until after the 2009 Family Smoking Act and subsequent legal challenges, especially the RJ Reynolds case.
Meanwhile, two other major developments were taking place:
- Tobacco litigation — Until the 1990s, the tobacco industry was able to evade most responsibility for harming consumers. However, a series of cases led up to the 1998 Tobacco Master Settlement, where companies agreed to pay states for their losses and curtail certain marketing practices.
- International bans on tobacco advertising were widely discussed, culminating in the 2005 World Health Organization Framework Convention on Tobacco Control.
“Joe Chemo,” a parody of Joe Camel, helped people make the connection between smoking and cancer.
Regulation of any kind was vehemently opposed by US tobacco companies throughout the 20th and into the 21st centuries. For example, in 2001, a minor state regulation became a First Amendment battle in Lorillard Tobacco v. Reilly. — The case involved the question of whether states could be more restrictive than the federal government and impose more regulations than the Federal Cigarette Labeling and Advertising Act. The Massachusetts law restricted advertising on billboards near schools. The Supreme Court gave a split decision, finding that some regulations targeting specific cigarette advertising and sales practices violated the First Amendment. The court also rejected the tobacco industry’s plea for a “strict scrutiny” First Amendment test and instead ruled that the Central Hudson test was adequate:
“For over 25 years, the Court has recognized that commercial speech does not fall outside the purview of the First Amendment. Instead, the Court has afforded commercial speech a measure of First Amendment protection “ ‘commensurate’ ” with its position in relation to other constitutionally guaranteed expression. In recognition of the “distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech,” we developed a framework for analyzing regulations of commercial speech that is “substantially similar” to the test for time, place, and manner restrictions. The analysis contains four elements: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Petitioners urge us to reject the Central Hudson analysis and apply strict scrutiny. They are not the first litigants to do so. Admittedly, several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases. But here … we see “no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision.”
In 2009, Congress gave the green light to FDA regulation in the Family Smoking Prevention and Tobacco Control Act — Regulations now prohibit tobacco companies from sponsoring sports or music events, or displaying logos on T-shirts, hats, or other apparel. The law was challenged in RJ Reynolds v. FDA, below).
** R.J Reynolds v. FDA — Nov. 7, 2011, the 11th Federal District Court agreed with five tobacco companies to halt requirements that disturbing graphic images be printed on tobacco packages. The temporary halt (injunction) was granted so that a First Amendment review could take place. The basic argument, once again, is over the strict scrutiny standard, but the new twist is the idea that by forcing the tobacco companies to print disturbing graphic images, the government is “compelling” speech. (Compelled speech has been seen as unconstitutional in, for example, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. a/Boston, Inc., 515 U.S. 557, 573-74, 1995 and also in Rosenberger v. Rector & Visitors of UVa, 515 U.S. 819,830, 1995).
FDA graphic warnings now mandatory on cigarette packages.
But there are narrow exceptions to this in the arena of compelled commercial speech that allow the government to require disclosures to protect consumers from confusion or deception, and these are for “purely factual and uncontroversial information.” And the graphic images that the FDA wants tobacco companies to use are not factual, but rather, designed to evoke an emotional reaction from smokers.
Under a strict scrutiny analysis, the court said, the government carries the burden of demonstrating that the FDA’s rule is narrowly tailored to achieve a compelling government interest. The interest in this case is unclear (and seems to go beyond education), the court said. Also, the mandatory use of the top 50% of a cigarette package and the top 20 percent of a printed tobacco advertisement “are any thing but narrowly tailored.” Yet at the same time, the court was not persuaded that irreparable harm would occur to the tobacco companies, since the estimated $20 million cost of pre-press work is “twelve one-hundredths of one percent of plaintiffs’ combined annual sales as reported for 2010.”
The US Supreme Court denied cert. in the Reynold – FDA case in April of 2013.
After the Reynolds case
E-cigarettes present some relatively new issues about advertising regulation and free speech — For example, see this ad for an “e” cigarette.
The FDA proposes new graphic warnings in 2019.
FDA final tobacco advertising regulations, 2020, include bans on sponsorships, free samples and other advertising promotions.