MEDIA LAW: Argue Against: Discuss 1st amendment implications Family Prevention Tobacco Act 2009. Are tobacco The Family Prevention Tobacco Act of 2009 was one of the more controversial pieces of legislature passed in recent times, for the simple fact that it gave a great deal of authority to the Food and Drug Administration to limit the effectiveness of the tobacco industry and its various companies to sell its products. There are multiple components of this legislation, which encompass various aspects of sales, advertising, inspections and registration of new products on the part of manufacturers. Among the many points of dissension that individual and collective entities within this industry claim regarding this legislation is that it limits their First Amendment right of freedom of speech. A thorough examination of the spirit and the lettering of this act, however, reveals that of its many different components, only one (that pertaining to advertising) relates to the First Amendment. Moreover, the usage of descriptors claiming that certain products are less harmful than others has the potential to circumscribe the rights of freedom of speech, as does the fact that this act limits the form of audio-visual advertisements. Research into both of these areas proves that the act is ineffective in reducing profits and incidence of smokers on the former account, and actually does not violate the latter due to its focus on visual depictions.

The Issue

In addressing the First Amendment implications of the Family Prevention Tobacco Act of 2009, it becomes necessary to stratify the various components of this piece of legislature which passed on June 22 of 2009. The act itself is fairly expansive, and covers a number of different realms -- not all of which are pertinent to the rights endowed by the First Amendment. There are several components of this piece of legislation, for example, which detail specific regulations regarding sales -- denoting requirements for sales in regards to minors and vending machines. Other aspects of the act are aimed at tobacco industry wide regulations relating to research on the effects of this product and registration and inspection mandates for companies operating within the industry. In helping to achieve these aims, the act calls for the establishment of a specific organization (the Center for Tobacco Products) and committee (The Tobacco Products Scientific Committee) to oversee the implementation of these various components of this act (U.S. Food and Drug Administration).

It is important to clarify many of the disparate facets of regulation that the Family Prevention Tobacco Act of 2009 covers in order to reinforce the point that its main objective is not to circumscribe free speech, but rather to reduce the incidence of harm incurred by patronizing tobacco products, specifically on the part of young people. In fact, the act

Recognizes that virtually all new users of tobacco products are under 18 -- the minimum legal age to purchase these products. Many new users will become addicted before they are old enough to understand the risks and ultimately will die too young of tobacco-related diseases. The Tobacco Control Act seeks to, among other things, prevent and reduce tobacco use by these young people (U.S. Food and Drug Administration).

In keeping with this aim, however, the act also places substantial marketing and advertising restrictions on tobacco companies. Again, not all of these restrictions directly pertain to issues of free speech; some mandates (such as requirements that companies proportion the size of warning labels on their products) possibly infringe on aesthetic appeals of tobacco products, but do not directly impinge upon free speech rights.

There are a few specific aspects of this legislation which represent the crux of the free speech debate. It prevents tobacco companies from utilizing specific words to describe their products and "prohibits "reduced harm" claims including "light," "low," or "mild" wihout an FDA order to allow marketing" (U.S. Food and Drug Administration) per section 911 of the Federal Food, Drug and Cosmetic Act. Additionally, the act also severely circumscribes the form of audio-visual advertisements. This aspect of the act is also grounds for tobacco companies to claim that their free speech rights are being violated due to this legislation, since they are restricted in the form of advertisement they can utilize to express affinities for their products. This part of the act directly alludes to television advertising, which is one of the more established and established means of marketing in contemporary society. As such, the issue of free speech represented by this facet of the act can significantly impact revenues for tobacco companies and its industry in general.

The...

It is worth noting that the prohibition of the aforementioned descriptors which are widely used to imply a decreased level of risk associated with certain products is targeted to tobacco consumers in general, and not just to the youth. However, those descriptors themselves are somewhat duplicitous in nature, since their usage implies that the associated product is somehow less dangerous and healthier than products that do not have such descriptors. The words "mild," "light" and "low" were specifically targeted in this piece of legislation since "Congress found that many smokers mistakenly believe that cigarettes marketed with these descriptors cause fewer health problems than other cigarettes, and that those beliefs can reduce the motivation to quit smoking" (Sifferlin). The impetus behind the barring of these words from describing tobacco products is to enable people to realize that all such products are equally noxious. The ramifications involving the First Amendment rights of the tobacco industry are that tobacco companies are limited in how they can use language to effectively sell their products.
Discussion

The prohibition of certain verbal descriptors directly pertains to the First Amendment rights ordained in the Bill of Rights in support of the U.S. Constitution. The restrictions on audio-visual advertisements is a less austere perceived transgression of First Amendment rights, for the simple fact that commercial advertisements are not directly banned in the way that the certain descriptors (which are used to denote accordant products) are. Still, the perceived impact on sales that restrictions on audio-visual advertisements can produce make this issue an extreme point of contention, and one of the reasons for the lawsuit of Discount Tobacco City & Lottery v. USA. Yet in addressing both of these aspects of the Family Prevention Tobacco Act of 2009 that potentially impose on the First Amendment rights of tobacco companies, it is necessary to delineate what is really at stake regarding adherence to this legislation, and weigh that against the repercussions felt throughout the tobacco industry at its purported loss of free speech.

Foremost among the issues at stake is the salutary concern for the nation and the myriads of people who choose to consume tobacco products. Tobacco kills and causes other harmful conditions which can seriously impair life. In that respect, what the tobacco industry considers a right to free speech (utilizing terms that make people believe that they can enjoy tobacco's pleasures without its ensuing pain and advertising products on television and internet commercials) is actually predicated upon killing people, both directly and indirectly. The spirit of the First Amendment's right to free speech was designed to protect people -- the tobacco industry is exercising that same right to destroy people. Therefore, the tobacco industry's exercise of its first amendment rights is actually going contrary to the spirit of the law that permits it.

More importantly, it has become increasingly apparent that after decades of profiting from marketing light, low, and mild cigarettes to consumers, the tobacco industry no longer needs to utilize those terms to convey the fact that it has products that are specifically tailored to meet that form of tobacco consumption. The major manufacturers of this industry still sell the same products that they did when they were permitted to use such descriptors. However, they have cleverly color coded both the names of those products and their packaging so that people now associate the color with the product and its alleged 'healthier' benefits. The truth proof of the efficacy of this method lies in the fact that researchers from the Harvard School of Public Health determined that one year after the [descriptors'] ban, 88% to 91% of smokers said it was 'somewhat easy' or 'very easy' to identify their previous brand of cigarettes based on the new color-based names. Sixty-eight percent of smokers could correctly name the package color associated with their usual brand, and sales for Lights remained unchanged (Sifferlin).

Therefore, when addressing the First Amendment implications of tobacco companies in light of the Family Prevention Tobacco Act of 2009, it critical to realize that the elimination of descriptors from advertising has not substantially affected the business such companies are able to generate. The sale of products has not changed, consumers are still able to identify their particular favorite via…