Up in Smoke? Commercial Free Speech in the United States and the European Union: Why Comprehensive Tobacco Advertising Bans Work in Europe, but Fail in the United States

By Flanagan, Sean P. | Suffolk University Law Review, Winter 2011 | Go to article overview

Up in Smoke? Commercial Free Speech in the United States and the European Union: Why Comprehensive Tobacco Advertising Bans Work in Europe, but Fail in the United States


Flanagan, Sean P., Suffolk University Law Review


"Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensible." (1)

I. INTRODUCTION

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (Smoking Prevention Act) into law, authorizing new methods to fight youth smoking. (2) the new law provides the legislative approval necessary for the Food and Drug Administration (FDA) to regulate the tobacco industry. (3) Advertising and marketing restrictions designed to thwart the tobacco industry's attempts to communicate with American youths are among the new rules and regulations proposed in the Smoking Prevention Act. (4) The new law mimics legislation passed within the European Union (EU), which instituted a complete ban on tobacco advertising in print, radio, and national services media. (5) Although the World Health Organization (WHO) argues that comprehensive bans on advertising--like the one implemented in the EU--are effective means to prevent youth smoking, a major commercial free speech battle looms on the horizon--one that may prove fatal to the Smoking Prevention Act. (6)

Both the United States and the EU provide protection for at least some commercial speech. (7) The difference between the two lies in the degree of protection afforded to such speech, and in what situations the government can regulate or ban commercial speech. (8) In the United States, the Supreme Court has recognized the importance of protecting commercial free speech that is neither misleading nor deceptive. (9) In the recent case Lorillard Tobacco Co. v. Reilly, (10) the Supreme Court held that a Massachusetts tobacco advertising regulation violated commercial free speech because the rules were not narrowly tailored to avoid infringing the rights of able-minded adults. (11) Although the Court did not affo JERRY N. WEISS is an artist who teaches at the Lyme Academy College of Fine Arts in Old Lyme, Connecticut. Visit his website at www. jerrynweiss.com. rd commercial speech the heightened level of protection that guards noncommercial expression--both political and religious--it held that legislators must narrowly tailor restrictions on commercial speech to meet specific objectives. (12) By contrast, both the European Convention on Human Rights (ECHR) and the European Court of Justice (ECJ) afford less protection to commercial speech and more deference to lawmakers, allowing broad prohibitions and regulations given certain justifications. (13)

In 2003, the EU established sweeping tobacco advertising restrictions for all print media. (14) Germany challenged the new restrictions the following year, citing violations of commercial free speech principles laid out in the ECHR. (15) The ECJ held that although the regulations did violate the freedom of expression of advertisers and promoters, the ECHR states that commercial freedom of expression is subject to limitations that allow lawmakers to effectively protect consumers and the general public. (16) EU lawmakers, therefore, have an inherent advantage compared to their U.S. counterparts when attempting to restrict or ban certain types of commercial advertising. (17)

This Note will begin with an overview of historical developments leading up to the passage of the Smoking Prevention Act. (18) This Note will then examine the origins of commercial free speech jurisprudence in both the United States and the EU. (19) Next, this Note will analyze the differences in the judicial interpretation of commercial free speech in the United States and the EU, as well as the constitutional difficulties that lie ahead for the Smoking Prevention Act. …

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