The Honorable Edward M. Kennedy
317 Russell Senate Office Building
Washington, DC
The Honorable Judd Gregg
393 Russell Senate Office Building
Washington, DC
Re: S. 2626, the Youth Smoking Prevention and Public Health Protection Act
Mr. Chairman and Ranking Member Gregg:
Thank you for this opportunity to present our views on the constitutional implications contained in S. 2626, the Youth Smoking Prevention and Public Health Protection Act. Section 102 of the bill would codify the August 28, 1996 FDA regulations of tobacco advertising, and regulate virtually every aspect of that advertising.
The ACLU believes that the breadth of the prohibition on tobacco advertisements far exceeds constitutional boundaries, and, if enacted, will most likely fail to withstand constitutional challenge. Moreover, we believe the enactment of the proposed tobacco advertising restrictions would drastically curtail commercial speech and could have a chilling effect on the right of the public and businesses to engage in free speech about controversial subjects. Furthermore, it sets a dangerous precedent for regulating a broad range of advertisements for other products or services that are perceived as unsuitable for children or are otherwise controversial. The ACLU, therefore, urges extreme caution when considering any legislative enactment or regulatory scheme that provides authority for government suppression of truthful, non-misleading consumer information about lawful products.
I. THE RESTRICTIONS S. 2626 WOULD IMPOSE ON ADVERTISING AND OTHER PROMOTION OF TOBACCO ARE INCONSISTENT WITH THE FIRST AMENDMENT
The right of free expression guaranteed by the First Amendment is not limited to social or political commentary, books, newspapers, and rallies. It also extends to symbolic speech, non-verbal expression, artistic, and commercial speech. While the current tobacco restrictions are being discussed as ""commercial speech"" issues, the proposed restrictions govern far more than advertising. Ultimately, these restrictions are aimed at swaying the debate about tobacco's health effects, individual choice, and government responsibility by limiting one side of the public discourse and the flow of consumer information. Even if such restrictions were challenged solely on the basis that they inhibit commercial speech, there is a strong argument under current Supreme Court precedent that they infringe on the First Amendment rights of advertisers and adult consumers.
Advertising restrictions, including (1) restricting all advertising to a black-and-white format; (2) restricting labeling and advertising in an audio format to words without music and video formats to static black text on a white background; and (3) banning tobacco industry corporate sponsorship of non-tobacco related events are not permissible under the First Amendment. For the restrictions under consideration to pass constitutional muster, the government must prove the measures are no more extensive than necessary and that they directly advance the government's objective in reducing smoking by youths. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (plurality opinion, applying a strengthened test for constitutional review of commercial speech violations). We do not believe that the FDA studies and legislative findings would be sufficient to provide the direct causal relationship necessary to sustain such regulations under current Supreme Court precedent.
A. GOVERNMENT ATTEMPTS TO CONTROL THE BEHAVIOR OF ITS CITIZENS BY DENYING ACCESS TO INFORMATION ABOUT LAWFUL PRODUCTS OR ACTIVITIES IS IMPERMISSIBLE UNDER THE SCOPE OF CONSTITUTIONAL PROTECTION GRANTED TO COMMERCIAL SPEECH
Although commercial speech has often been regarded as being less significant than other expression protected by the First Amendment, the Supreme Court has made clear in recent years that the level of constitutional protection does not depend on whether it is identified as ""non-commercial"" or ''commercial speech.'' Since the seminal decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), the Court has consistently rejected this distinction. In Virginia State Board of Pharmacy, the Court explained that First Amendment obstacles to government suppression of truthful consumer information (in that case pharmaceutical pricing information) should not vary depending on whether the speaker's purpose was ""commercial"" or ""non-commercial."" The Court reiterated this in the 1993 decision in Cincinnati v. Discovery Network, 507 U.S. 410 (1993), where it warned that state attempts to reduce the level of constitutional protection against government regulations affecting commercial speech ""attaches more importance to the distinction between commercial and non-commercial speech than our cases warrant and seriously underestimates the value of commercial speech."" Id. at 419. While proponents of this bill may argue that the lower level of constitutional protection is justified because the bill is intended to minimize the threat to the public health posed by tobacco, we disagree with such a conclusion. First Amendment scrutiny is not diminished by such a government claim of interest in restricting speech. Indeed, the Court has repeatedly rejected such paternalistic claims as the basis for upholding otherwise unconstitutional statutes.
For example, in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the Court unanimously ruled that a 1935 federal statute that prohibits any mention of alcoholic content on beer labels violates the First Amendment. In an important footnote, the Court rejected the argument that the government has greater latitude in regulating commercial speech about socially harmful activities. Such regulations, the Court said, must satisfy the same standard of review as other regulations of commercial speech. Id. at 482 n.2.
In 44 Liquormart, the Court similarly cautioned against paternalistic government attempts to shield the public from information it determines is about ""harmful"" or ""vice activities"":
The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. That teaching applies equally to state attempts to deprive consumers of accurate information about their chosen products.
44 Liquormart, 517 U.S. at 503. The decision in 44 Liquormart found that while government may ban or prohibit activities that it concludes are dangerous to the public, it may not seek to prohibit speech about such activities in the absence of such a ban. The Court stated ""the text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct."" Id. at 512. Hence, paternalistic legislative decision-making may not be directed at speech alone. The Court reiterated this in stating, ""a 'vice' label that is unaccompanied by a corresponding prohibition against commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity."" Id. at 514.
Thus, these findings by the Court are particularly relevant to Congress's consideration of legislation proposing tobacco advertising restrictions. The FDA has asserted the need for such regulations because tobacco is a serious threat to the public health. However real that threat may be, the Court's decisions make clear that the government may protect public health from harmful practices like smoking by requiring the distribution of information about risks involved, but that it cannot impose the broad sweeping restrictions on advertising under consideration.
The Court has explained that there is an inherent need to protect the free flow of truthful commercial information from government suppression. Bates v. State Bar of Arizona, 433 U.S. 350, 364-365 (1977)(rejecting the state's paternalistic approach that suppresses information in order to control consumer choices), Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561-562 (1980) (""[c]ommercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information."" Id. at 561). In Rubin v. Coors, the Court reaffirmed the importance of ""the free flow of commercial information"" by repeating an observation it made in Virginia State Board of Pharmacy: that a consumer's interest in commercial information ""may be as keen, if not keener by far, than his interest in the day's most urgent political debate."" 425 U.S. at 763.
Thus, legislation and regulations that restrict truthful information about tobacco products would be subjected to strict constitutional scrutiny. We do not believe that the proposed restrictions could survive such a challenge.
B. PROPOSED RESTRICTIONS FAIL TO MEET FIRST AMENDMENT SAFEGUARDS
The proposed legislation would authorize the FDA to issue regulations to:
1. RESTRICT ALL ADVERTISING TO A BLACK AND WHITE FORMAT
2. ALLOW UNRESTRICTED ADVERTISING IN ONLY THOSE PUBLICATIONS WHICH HAVE AN 85% OR MORE ADULT READERSHIP, AND FEWER THAN 2 MILLION YOUTH READERS
3. RESTRICT LABELING AND ADVERTISING IN AN AUDIO FORMAT TO WORDS WITHOUT MUSIC, AND LIMIT VIDEO FORMAT TO STATIC BLACK TEXT ON A WHITE BACKGROUND
4. BAN LOGO AND BRAND NAMES ON RACE CARS, DRIVER UNIFORMS, ETC.
5. BAN THE USE OF TOBACCO BRAND NAMES ON NON-TOBACCO PRODUCTS (e.g. T-SHIRTS, CAPS, LIGHTERS)
6. BAN THE USE OF TOBACCO BRAND NAMES ASSOCIATED WITH NON-TOBACCO PRODUCTS
7. BAN BRAND-NAME EVENT SPONSORSHIPS
8. BAN DISTRIBUTION OF FREE PRODUCT SAMPLES, EITHER IN PERSON OR THROUGH THE MAIL
9. BAN OUTDOOR ADVERTISING, INCLUDING BILLBOARDS, POSTERS, OR PLACARDS, WITHIN 1,000 FEET OF THE PERIMETER OF ANY PUBLIC PLAYGROUND, ELEMENTARY SCHOOL OR SECONDARY SCHOOL.
The practical effect of these regulations is to essentially ban a majority of outdoor advertising in some areas, and reduce the remainder of ads to bland, uninteresting labels. For example, in some metropolitan areas, it may be virtually impossible to do any outdoor advertising to adults, because it would be within 1,000 feet of a playground or school.
Simply put, in order for the proposed regulations to pass constitutional scrutiny, the government must assert a substantial interest, prove that the regulation directly advances that interest, and is no more extensive than necessary. Central Hudson Gas, supra. at 566, 44 Liquormart, supra. at 500, Rubin, supra. at 482, Edenfield v. Fane, 507 U.S. 761, 769 (1993). This burden has proven fatal for restrictions that were far less restrictive in scope than those under consideration in pending legislation.
Thus, for the restrictions to pass constitutional muster, the government would have to prove that each restriction is no more restrictive than necessary and directly advances the government's objective in reducing smoking by youths. The FDA has provided numerous studies that show that youth recognizes tobacco advertisements. However, we believe it will be unable to convince a reviewing court that there is a causal link between advertising and youth consumption, just as such justifications have been rejected by the Court with regards to alcohol advertisement. For example, in Rubin v. Coors, the Court applied the Central Hudson commercial speech test, and held that the challenged statute did not directly advance its asserted interest in limiting strength wars between alcohol manufacturers. The Court further noted that the restriction on beer labels ""is not sufficiently tailored to its goal,"" Id. at 544, since the government could, if it chose, directly limit the alcoholic content of beer.
In Lorillard Tobacco Company v. Thomas Reilly, Attorney General of Massachusetts, 533 U.S. 525 (2001), the Supreme Court struck down a regulation of tobacco advertising that was similar to the FDA's proposed rule. The Massachusetts regulation prohibited outdoor ads within 1,000 feet of schools, parks and playgrounds and also restricted point-of-sale advertising for tobacco products.
Writing for the majority, Justice O'Connor found the Massachusetts regulation was not narrowly tailored enough to meet constitutional scrutiny. She also noted a similar problem with the FDA regulation:
First, the Attorney General did not seem to consider the impact of the 1,000-foot restriction on commercial speech in major metropolitan areas. The Attorney General apparently selected the 1,000-foot distance based on the FDA's decision to impose an identical 1,000-foot restriction when it attempted to regulate cigarette and smokeless tobacco advertising. See FDA Final Rule, 61 Fed.Reg. 44399; Brief for Respondents 45, and n. 23. But the FDA's 1,000-foot regulation was not an adequate basis for the Attorney General to tailor the Massachusetts regulations. The degree to which speech is suppressed--or alternative avenues for speech remain available--under a particular regulatory scheme tends to be case specific. See, e.g., Renton, 475 U.S., at 53-54, 106 S.Ct. 925. And a case specific analysis makes sense, for although a State or locality may have common interests and concerns about underage smoking and the effects of tobacco advertisements, the impact of a restriction on speech will undoubtedly vary from place to place. The FDA's regulations would have had widely disparate effects nationwide. Even in Massachusetts, the effect of the Attorney General's speech regulations will vary based on whether a locale is rural, suburban, or urban. The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring. Id. at 562-63. [Emphasis added.]
More recently, the Court again struck down advertising regulations because they were not narrowly tailored. In Thompson v. Western States Medical Center, 122 S.Ct. 1497 (2002), the Court considered advertising restrictions dealing with compounded drugs. The Court made it clear that ""if the Government [can] achieve its interests in a manner that does not restrict speech or that restricts less speech, the Government must do so. . . .If the First Amendment means anything, it means that regulating speech must be a last - not first - resort."" Id. at 1506-1507.
There are certainly less drastic ways to curtail tobacco use by minors than by restricting the flow of truthful information about a lawful product. The restriction of the sale of tobacco to minors and strong enforcement by states of existing laws are more appropriate measures and do not impinge on the First Amendment rights of the adult population and commercial vendors and distributors. Congress can legitimately provide more money to the states for enforcement of the current laws, and increase education about the dangers of smoking. None of these alternatives would restrict the flow of truthful information.
II. RESTRICTIONS INTENDED TO REDUCE THE NUMBER OF CHILDREN WHO BEGIN SMOKING MUST BE NARROWLY DEFINED SO AS NOT TO INFRINGE ON THE RIGHTS OF ADULTS
The FDA has repeatedly stated that the proposed restrictions would not impair the free flow of information to adults. We strongly disagree with that conclusion given the breadth of the proposed advertising restrictions. The proposed strict restrictions on display and appearance of advertisements are designed to minimize public attention to such materials.
Thus, in an effort to deny minors access to potentially harmful speech, the FDA tobacco restrictions and proposed legislation effectively suppress a large amount of speech that adults have a constitutional right to receive. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the bill is intended to serve.
On numerous occasions the Court has struck down overbroad regulations that have purported to protect children by restricting the availability of speech that may be considered ""indecent"" or ""harmful to minors."" In Reno v. ACLU, 117 S.Ct. 2329, the Court struck down provisions of the Communications Decency Act of 1996 that criminalized the transmission of such material on the Internet, stating:
It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. (citations omitted) But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not ""reduc[e] the adult population.., to... only what is fit for children."" (citations omitted) ""[R]egardless of the strength of the government's interest"" in protecting children, ""[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."" Bolger v. Youngs Drug Products Corp., 463 U. 5. 60, 74-75 (1983).
In Lorillard, the Court again rejected an attempt to sanitize information for the benefit of children. Referring to its holding in Reno v. ACLU, supra., the Court reiterated that, while the government has a compelling interest in protecting children from harmful material, it may not impose sweeping restrictions on information intended for adults.
Hence, while the government has an interest in protecting minors, it may not advance that interest through the implementation of broad regulations that also impair the free flow of truthful information to adults.
The fact that the regulations allow a limited use of text-only advertisements and advertisements published only in adult oriented materials does not save the restrictions from failure under constitutional review. The Supreme Court has recognized that governmental suppression of speech may be accomplished not just directly but also through subtle forms of interference. Bates v. Little Rock, 361 U.S. 516, 523 (1960). Indeed, the Court has also held that visual and audio depictions are also protected forms of expression and content that are important for advertisers in conveying their message. Zauderer v. Office of Disciplinary Counsel 471 U.S. 626, 647 (1985) (finding that commercial illustrations are entitled to the First Amendment protections afforded verbal speech.)
Thus, the ACLU believes that attempts to reduce the exposure of minors to tobacco advertisements cannot avoid restricting the same information for the adult population. As noted above, there are alternatives that address tobacco use by minors without infringing on speech protected under the First Amendment.
Conclusion
Establishing a precedent of regulating advertising for lawful products simply because they are disfavored sets us on the path of regulating advertising for many other products which someone may find ""harmful."" Justice Thomas recognized this in his dissent in Lorillard: ""Nevertheless, it seems appropriate to point out that to uphold the Massachusetts tobacco regulation would be to accept a line of reasoning that would permit restrictions on advertising for a host of other products."" Will the government next attempt to regulate the advertising of high-sodium foods, or those laden with sugar?
The ACLU recognizes that the public health effects of tobacco are an issue of genuine public concern and debate. While we laud attempts to gain full public disclosure about the risks of tobacco and costs to the public, we are not persuaded that measures to restrict truthful and non-misleading information are an appropriate solution. No matter how well-meaning, government regulation may not restrict free speech in order to control the behavior of the public.
Sincerely,
Laura W. Murphy
Director
Marvin J. Johnson
Legislative Counsel
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