A First Amendment Look at the Statutory Ban on Tobacco Advertisements and the Self-Regulation of Alcohol Advertisements

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Table of Contents  I.   Introduction. II.  Overview of the First Amendment and      Commercial Speech III. History and Health Effects of Tobacco      and Alcohol in the U.S.      A. Tobacco in the U.S      B. Alcohol in the U.S. IV.  Regulation of Commercial Speech of Harmful Products      A. Deference to Congress and Broadcast Regulation      B. Tobacco Advertisement Regulation Under Central Hudson      C. Distinguishing Alcohol Advertising Under Central Hudson V. Conclusion. 


In 1970, Congress passed the Cigarette Labeling and Advertising Act which prohibited advertising of cigarettes on "any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." (1) The Federal Communications Commission ("FCC") "regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories." (2) The prohibition was later amended to include a ban on advertising little cigars. (3) Unlike tobacco, alcohol advertisements are not prohibited. (4) Instead, broadcast alcohol advertising is only subject to self-regulation by private organizations. (5)

When the Cigarette Labeling and Advertising Act was passed, the Supreme Court was less than sympathetic to commercial speech First Amendment claims. (6) Since the passage of this Act, the Court has changed its Commercial Speech Doctrine and has become friendlier to parties challenging a regulation based on the First Amendment. (7) Currently, the Court's commercial speech test comes from Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. (8) The Court set out a four-prong test, henceforth referred to as the Central Hudson test, for First Amendment claims in the commercial speech setting:

      If the communication is neither misleading nor related to    unlawful activity, the government's power is more circumscribed.    The State must assert a substantial interest to be achieved by    restrictions on commercial speech. Moreover, the regulatory    technique must be in proportion to that interest. The limitation on    expression must be designed carefully to achieve the State's goal.    Compliance with this requirement may be measured by two criteria.    First, the restriction must directly advance the state interest    involved; the regulation may not be sustained if it provides only    ineffective or remote support for the government's purpose. Second,    if the governmental interest could be served as well by a more    limited restriction on commercial speech, the excessive    restrictions cannot survive. (9) 

Because tobacco advertising regulations were enacted by Congress (10) and deal with the broadcast medium, (11) the Court will be more deferential in its First Amendment analysis. After taking a closer look at the Court's First Amendment Doctrine, it becomes clear why the Supreme Court would uphold the ban on tobacco advertising in the broadcast medium but would overturn a similar ban on alcohol advertising. The regulation of these two vices can be distinguished based on the substantial governmental interest prong of the Central Hudson test. (12) Due to the destructive nature of tobacco, (13) the government has a much stronger interest in banning its advertisement compared to alcohol.

Part I is a summary of this note. Part II provides an overview of current First Amendment Commercial Speech Doctrine and how the Court evolved to this point. In Part III of this note, the social and legal history of tobacco and alcohol, as well as the health effects of each, are discussed. In Part IV, the Commercial Speech Doctrine is applied to tobacco and alcohol, showing how the ban on alcohol and tobacco advertising would be treated under the Court's current First Amendment Doctrine. Part V concludes that a complete ban on tobacco advertising in broadcasting would be held constitutional while a similar ban on alcohol would be found unconstitutional due to the severe health effects from any amount of smoking. …