First Amendment and the Family Smoking Prevention Tobacco Act

Introduction

The Family Smoking Prevention and Tobacco Control Act of 2009 was one of the more controversial pieces of legislation 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 in selling their products. There are multiple components to this legislation, encompassing 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 the industry claim regarding this legislation is that it limits their First Amendment right to freedom of speech. A thorough examination of the spirit and the letter 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 freedom of speech, as does the fact that this act limits the form of audio-visual advertisements. Research into both of these areas demonstrates that the act is ineffective in reducing profits or the incidence of smoking on the former account, and that it does not actually violate the First Amendment on the latter, due to its focus on visual depictions rather than spoken or written speech.

In addressing the First Amendment implications of the Family Smoking Prevention and Tobacco Control Act of 2009, it is necessary to examine the various components of this legislation, which was passed on June 22, 2009. The act is fairly expansive and covers a number of different areas — not all of which are pertinent to the rights protected by the First Amendment. Several components of the legislation, for example, detail specific regulations regarding sales, including requirements relating to minors and vending machines. Other aspects are aimed at industry-wide regulations relating to research on the effects of tobacco products and registration and inspection mandates for companies operating within the industry. To help achieve these aims, the act calls for the establishment of a specific organization (the Center for Tobacco Products) and a committee (the Tobacco Products Scientific Advisory Committee) to oversee implementation of the act's various provisions (U.S. Food and Drug Administration).

The Issue: Scope of the Act and Its Advertising Restrictions

It is important to clarify the many distinct areas of regulation covered by the act in order to reinforce the point that its main objective is not to circumscribe free speech, but rather to reduce the harm caused by tobacco products, particularly among young people. The act recognizes that virtually all new users of tobacco products are under 18 — the minimum legal age to purchase these products — and that many new users will become addicted before they are old enough to understand the risks, ultimately dying too young of tobacco-related diseases. The Tobacco Control Act seeks, among other things, to prevent and reduce tobacco use among young people (U.S. Food and Drug Administration).

In keeping with this aim, the act also places substantial marketing and advertising restrictions on tobacco companies. Not all of these restrictions directly pertain to free speech; some mandates — such as requirements that companies proportion the size of warning labels on their products — may affect the aesthetic appeal of tobacco products, but do not directly impinge upon free speech rights.

A few specific aspects of the legislation represent the crux of the free speech debate. The act prevents tobacco companies from utilizing specific words to describe their products and "prohibits 'reduced harm' claims including 'light,' 'low,' or 'mild' without 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 severely limits the form of audio-visual advertisements. This aspect of the act is grounds for tobacco companies to claim that their free speech rights are being violated, since they are restricted in the form of advertisement they can use to express the merits of their products. This provision directly concerns television advertising, one of the most established means of marketing in contemporary society. As such, the free speech issue raised by this facet of the act could significantly impact revenues for tobacco companies and the industry as a whole.

The First Amendment issues pertaining to the act are situated between allowing tobacco companies freedom of expression to market as effectively as possible, and protecting the health of the American public from the harms of tobacco consumption. It is worth noting that the prohibition of the aforementioned descriptors — widely used to imply a decreased level of risk — is targeted at tobacco consumers in general, not only at youth. However, those descriptors are somewhat duplicitous in nature, since their use implies that the associated product is somehow less dangerous than products without such labels. The words "mild," "light," and "low" were specifically targeted because "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 banning these words from tobacco product descriptions is to help people recognize that all such products are equally harmful. The First Amendment implications for the tobacco industry are that companies are limited in how they can use language to sell their products effectively.

First Amendment Implications of Descriptor Prohibitions

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 represent a less severe perceived transgression of First Amendment rights, for the simple fact that commercial advertisements are not directly banned in the way that specific descriptors are. Still, the perceived impact on sales that restrictions on audio-visual advertisements can produce makes this issue an extreme point of contention, and one of the reasons for the lawsuit Discount Tobacco City & Lottery v. USA. In addressing both aspects of the act that potentially impose on the First Amendment rights of tobacco companies, it is necessary to clarify what is really at stake under the 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 public health concern for the millions of Americans who consume tobacco products. Tobacco kills and causes other harmful conditions that can seriously impair quality of life. In that respect, what the tobacco industry considers a right to free speech — utilizing terms that lead people to believe they can enjoy tobacco's pleasures without its accompanying harms, and advertising products on television and internet commercials — is actually predicated upon endangering lives, 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 in ways that harm people. In this sense, the tobacco industry's exercise of its First Amendment rights runs contrary to the spirit of the very law that permits it.

More importantly, it has become increasingly apparent that after decades of profiting from marketing light, low, and mild cigarettes, the tobacco industry no longer needs those terms to convey which products are specifically tailored to that form of tobacco consumption. The major manufacturers in the industry still sell the same products 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 consumers now associate a particular color with a product and its alleged health benefits. The effectiveness of this strategy is confirmed by research from the Harvard School of Public Health, which found that one year after the descriptor 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 the act, it is critical to recognize that the elimination of descriptors from advertising has not substantially affected tobacco companies' ability to generate business. Sales have not changed, consumers are still able to identify their preferred products via color-coding, and revenues remain virtually the same as before the legislation passed. When considering the First Amendment implications, one must recognize that the prohibition of descriptors has not prevented the tobacco industry from continuing to profit from the same products it sold prior to the legislation. Whatever repercussions for free speech the act carries, they are not severe enough to prevent the tobacco industry from achieving its principal commercial objective. The harmless nature of this advertising restriction is further underscored by the fact that according to the Centers for Disease Control and Prevention, no convincing evidence exists indicating that changes in cigarette design have resulted in any meaningful decrease in tobacco-related disease. Each year, an estimated 443,000 people die prematurely from smoking or exposure to secondhand smoke, and another 8.6 million have a serious illness caused by smoking (Centers for Disease Control and Prevention).

Conclusion

At this point, there is truly no need to conceive of further legislation that addresses the First Amendment implications of the Family Smoking Prevention and Tobacco Control Act of 2009, for the simple fact that this act has not created a substantial enough impact on the right to freedom of speech for tobacco companies. This claim is supported by a body of evidence, not the least of which is the fact that of the many aspects of the act, the only one pertinent to the First Amendment is the advertising component. This paper demonstrates that despite the exclusion of certain words indicating a healthier product, consumers are still aware of which products fall into the categories previously denoted by those descriptors, and that sales — as well as the harmful incidences resulting from smoking — have not been affected by this legislation. Moreover, restrictions on audio-visual advertisements are centered on images, which fall outside the First Amendment's protections. When these factors are weighed against the many Americans who die or contract disease each year due to tobacco products, it becomes clear that the rights of tobacco companies have not been infringed upon to a degree that warrants further legislative remedy.