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The author is with the Program in the History and Ethics of Public Health and Medicine, Division of Sociomedical Sciences, Mailman School of Public Health, Columbia University, New York, NY.
Correspondence: Requests for reprints should be sent to Ronald Bayer, PhD, Columbia University, 600 W 168th St, New York, NY 10032 (e-mail: rb8{at}columbia.edu).
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ABSTRACT |
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 TOP ABSTRACT INTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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In June of 2001, the Supreme Court overturned a set of antitobacco measures adopted by the state of Massachusetts designed to protect young people from advertising. Once again, the court expressed its hostility toward measures designed to restrict commercial speech in the name of the social good. In so doing, the court underscored the enduring tension between the libertarian and social welfare dimensions of contemporary democracy and placed into relief the divisions within the American liberal tradition.
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INTRODUCTION |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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Just as critically, it placed into relief the divisions within the American liberal tradition, divisions that have, in the context of the 3-decade campaign against tobacco, pitted civil libertarians and public health officials against each other. At this juncture, it is crucial to understand the clash of values so that we can best understand the tradeoffs that will be necessitated by the court's decision. A brief history of the struggle over tobacco advertising will provide the necessary perspective.
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HISTORICAL PERSPECTIVE |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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Six months after Banzhaf's application, the FCC declared that it would require television and radio stations it had licensed to provide, free of charge, a "significant amount of time"—not equal time—to those who sought to present the case against cigarette smoking. In so doing, the commission relied not only on the Fairness Doctrine but on the obligation of stations to serve the "public interest."2 In making its determination, the FCC stressed that its holding was limited to cigarettes, a product it held to be uniquely dangerous.
When the imposition of the antismoking ads was challenged in the US Circuit Court of Appeals for the District of Columbia, a powerful decision by its chief judge, David Bazelon, sustained the authority of the FCC. Writing against a backdrop of constitutional law that accorded advertising no First Amendment protection, as well as the emerging understanding of the unique risks posed by cigarettes, the famously liberal Bazelon held that the antismoking ads would contribute to fostering the values inherent in the First Amendment. "Where, as here, one party to a debate has a financial clout and a compelling economic interest in the presentation of one side unmatched by its opponent, and where the public stake in the argument is no less than life itself, we think the purpose of rugged debate is served, not hindered, by an attempt to redress the balance."2
Just 3 months after the court of appeals had so forcefully endorsed the value of rugged debate, the FCC called for a total ban on cigarette advertisements on television and radio. The FCC declared, "It would ... appear wholly at odds with the public interest for broadcasters to present advertising promoting the consumption of the product posing this unique danger—a danger measured in terms of an epidemic of deaths and disabilities."3 Gone were any claims about the importance of presenting both sides of an issue of public importance: "The public interest issue posed cannot be resolved by some attempted balances."3
Turning to the obvious First Amendment concerns raised by its proposed rule, the commission enunciated a principle that would shape discussions over the next 3 decades and that would find its way into a 1986 Supreme Court ruling severely limiting the constitutional protection of commercial speech. "While in light of the national experience with liquor," the FCC said, "the prohibition of a particular product such as cigarettes may be impracticable, (...a matter solely for the consideration of Congress), it does not follow at all that the promotion of the product should be permitted either legally or as a matter of policy."3 In short, the greater authority to prohibit, even if not exercised, included the lesser authority to restrict advertising and promotion.
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CONTROVERSY IGNITES |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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The US District Court for the District of Columbia upheld the power of Congress to prohibit advertising of cigarettes in any media.5 It was the lone dissent by Judge J. Skelly Wright that gave expression to the virtues of robust and unfettered debate. "The First Amendment does not protect only speech that is healthy or harmless," wrote the liberal Wright.5
In the mid-1980s, with tobacco consumption declining slowly—smoking prevalence among adults had dropped by 33% in the 20 years since the Surgeon General's Report6—and the belief that package warnings were no match for the more than $2 billion spent annually on the promotion of cigarettes, those committed to a "smoke-free America" began to press for a total ban on cigarette advertisements.
Efforts to impose radical restrictions—and even total bans—on cigarette advertising had to confront an evolving constitutional debate over the extent to which commercial speech should be accorded protection under the First Amendment. During the 1980s, the Supreme Court itself pursued an uncertain path, at times handing down rulings that sought to balance the government's authority to regulate the sale of goods and the right to speak about such goods.7 On the other hand, the court held in 1986 that total prohibitions on advertising might be permissible.
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A BAN ON ADVERTISING? |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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While the proponents of a ban on all cigarette advertising and promotion sought to ground their arguments on the uniquely dreadful consequences of the sale and consumption of tobacco products, many who opposed such efforts centered their claims on the uniquely important role of First Amendment protections for democratic culture. While the former believed it possible to prohibit the advertising of cigarettes without unraveling the fabric of freedom of expression, even for commercial speech, the latter saw freedom as indivisible.
It is thus not surprising that strong advocates of civil liberties were drawn to the defense of the tobacco industry when it was confronted with proposals for bans or radical restrictions on advertising and that the industry sought out such advocates to defend its position. Thus, Burt Neuborne of the New York Civil Liberties Union testified before a congressional committee on behalf of the tobacco industry. For Neuborne, the issue was simple: the ban represented an unwarranted exercise of "paternalistic manipulation." "In place of faith in the individual, the proposed ban is premised on mistrust of the individual. Starkly put, the proposed ban is a vote of ‘no confidence’ in the capacity of ordinary Americans to judge for themselves how to react to tobacco advertising. Such an elitist approach, which treats Americans as the incompetent wards of a benevolent state who can't be trusted to evaluate speech for themselves, is wholly antithetical to the faith in human reason that underlies our political and economic system."11
While support for an outright ban on advertising had thus gained strength in the 1980s, involving a coalition of antismoking activists, leading health and public health associations, and legal commentators,12 there was little evidence that such a move had anything like the necessary political support. Neither the compelling logic of those committed to civil liberties, nor the absence of definitive evidence about the potential public health benefits that might follow such a prohibition, explains the failure to impose such a ban. It was rather the combined influence of the tobacco industry, the media, and those cultural and popular institutions that benefited from tobacco promotion and support that rendered the movement for a total ban or radical restrictions politically impotent. It would require a reframing of the issue to make the call for restricting or prohibiting advertising and promotion more powerful.
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THE PROTECTION OF CHILDREN |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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At the heart of this reorientation were a pair of linked claims, one moral and the other empirical. Children and young adolescents were incapable of making determinations on their own behalf and needed protection from manipulation by those who sought to stimulate their desires for harmful goods. Whatever the limits of paternalism in a liberal society, the exercise of protective authority was certainly appropriate where those below the age of consent were concerned. Since cigarette smoking, once commenced, is driven by the addictive power of nicotine, the exercise of restrictive and protective authority to prevent smoking in the young was morally justified. No one objected to laws that prohibited the purchase of cigarettes by those defined as underage. Restrictions on advertising that could stimulate the desire for tobacco products were thus appropriate. That such measures would indirectly impose limits on advertising and promotion viewed by adults was a price worth paying given the toll imposed by tobacco consumption. Informing this moral perspective was the empirical judgment that advertising and promotion played a central role in the initiation of smoking by the young.
The groundwork for the shift toward a youth-centered prevention policy was provided by the first Surgeon General's Report to focus on youth. This 1994 report, Preventing Tobacco Use Among Young People, boldly asserted, "When young people no longer want to smoke the epidemic itself will die."13 One of the critical tasks of public health was to counteract the "indoctrination" of the young at a moment when they were most susceptible. In this regard, the report dismissed as "misguided" the debate over whether cigarette promotion "caused" young people to smoke; the report concluded, "Whether causal or not, [promotion] fosters the uptake of smoking, initiating for many a dismal and relentless chain of events."
In the same year, the Institute of Medicine issued its report Growing Up Tobacco Free.14 Its central assumption was that "in the long run tobacco use can be most efficiently reduced through a . . . policy aimed at preventing children and adolescents from initiating tobacco use."14 Among the recommendations of the report was a call for severe restrictions on tobacco advertising, including the possible imposition of a total ban.
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THE FDA STEPS IN |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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To prevent the newly diagnosed illness, the FDA's final rule issued in 1996 would have made it a federal offense to sell cigarettes to those under 18 years of age, ended the practice of distributing free cigarettes, restricted the placement of vending machines, and imposed far-reaching restrictions on promotion and advertising. Tobacco advertisements and billboards within 1000 feet of elementary or secondary schools and public playgrounds were to be banned. With the exception of publications whose readership was 85% aged 18 or over and those read by 2 000 000 or fewer people aged younger than 18, all tobacco advertising was to be restricted to the tombstone format of black text on a white background. Thus, the "imagery and color young people find so appealing"15 was to be banned. Finally, the FDA rule would have obligated the tobacco industry to fund a national program to "counter the effects of the pervasive advertising that for decades has influenced young people to begin and continue using tobacco products." Aware of the constitutional challenge that such proposed measures would confront, the FDA asserted that its rules would "preserve the components of advertising and labeling which can provide product information to adult smokers."15
The Supreme Court never addressed the constitutionality of the restrictions on advertising because when the FDA's proposed regulations were subject to review, the court ruled that the agency had overstepped its authority by attempting to regulate tobacco.
A clash over the desirability of radical restrictions on advertising took place before Congress in 1998 as it considered legislation that would have created the legal structure necessary to permit a proposed settlement between the state attorneys general and the tobacco industry (involving a payment of $368 billion in exchange for immunity from class action lawsuits) to move forward. Stepping beyond the FDA-proposed regulations, the settlement would have prohibited the use of all human images and cartoon characters in tobacco advertising, and would have banned all advertising outdoors, in all enclosed stadiums, and on the Internet. Once again, a number of First Amendment advocates responded critically. Lawrence Tribe termed the proposed limitations "extremely problematic," noting that although the protection of children was "an important and legitimate governmental purpose," such protective impulses could not justify restricting access by adults to material not fit for children.16 His views were shared by Martin Redish, a long-time opponent of restrictions on commercial speech, who denounced the child-centered justification for the proposed limitations because they would "reduce all of society to a community of children for purposes of the First Amendment." In the end, he asserted that the "FDA's regulations . . . should be revealed for what they are: content-based efforts to stifle one side of a public debate because of a paternalistic governmental fear that the citizenry cannot be trusted to judge the truthful advocacy of lawful conduct." Where the First Amendment required the use of a "scalpel" when restrictions were to be imposed, federal authorities had employed "a hatchet."17 Like the FDA's proposed advertising regulations, the settlement's limitations were never to be subject to constitutional review because the broad congressional legislative package and the settlement agreement itself collapsed after acrimonious political maneuvering.
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ARE ADVERTISING BANS EFFECTIVE? |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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And here, remarkably, despite decades of agitation for restrictions on advertising by public health advocates, the evidence has been very limited. Addressing this issue, Michael Schudson, who was sympathetic to radical restrictions on the advertising of tobacco products, was compelled to acknowledge the marginal impact such measures might have. In general, he concluded in the early 1990s, "The available econometric evidence [on the relationship between advertising and cigarette smoking] is equivocal and the kinds of materials available to produce the evidence leave much to be desired."18 Such skepticism continued to prevail. An analysis by Saffer and Chaloupka19 in 2000 suggested that only a total ban on advertising and promotion could have a desired, if modest, impact on smoking. Partial or limited restrictions would have no discernible consequence.
Hence, a paradox. Politically acceptable limits on ads might have no impact. The kind of prohibition most likely to advance, if only incrementally, the public health would provoke the loudest outcry from those committed to the principles of freedom of expression and, given the ruling of the Supreme Court in Lorillard, would almost certainly produce a holding declaring such a measure unconstitutional. Given this context, those involved in the campaign against tobacco may have to think long and hard about alternatives to limits on advertising. There is too much at stake to invest resources on symbolic struggles with little prospect for success.
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Acknowledgments |
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Footnotes |
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Accepted for publication October 28, 2001.
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References |
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TOPABSTRACTINTRODUCTIONHISTORICAL PERSPECTIVECONTROVERSY IGNITESA BAN ON ADVERTISING?THE PROTECTION OF CHILDRENTHE FDA STEPS INARE ADVERTISING BANS EFFECTIVE?References |
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2. Banzhaf v Federal Communications Commission, 132 US App DC 14 (1968).
3. Notice of Proposed Rule Making: In the Matter of Amendment of Part 73 of the Federal Communications Commission Rules With Regard to the Advertisement of Cigarettes. Washington, DC: Federal Communications Commission; February 6, 1969. Docket No. 18434.
4. Whiteside T. Cutting down. New Yorker. December 19, 1970:42–95.
5. Capital Broadcasting Company v Mitchell, 333 F Supp 582 (1971).
6. The Health Consequences of Smoking: Nicotine Addiction. Appendix A. Atlanta, Ga: US Dept of Health and Human Services; 1988.
7. Tribe L. American Constitutional Law. 2nd ed. Mineola, Minn: The Foundation Press; 1988:893.
8. Board of Trustees, American Medical Association. Media advertising for tobacco products. JAMA.1986;255: 1033.[Medline]
9. Hearings Before House Subcommittee on Health and the Environment, Committee on Energy and Commerce, 101st Cong, 2nd Sess (1990) (statement of American Public Health Association).
10. Iglehart JK. The Campaign against smoking gains momentum. N Engl J Med.1986;314:1059–1064.[Medline]
11. Hearings Before House Subcommittee on Health and the Environment, Committee on Commerce and Energy, 99th Cong, 2nd Sess (1986) (statement of Burt Neuborne).
12. Berman JA. Constitutional realism: legislative bans on tobacco advertisements and the First Amendment. University of Illinois Law Rev.1986:1193–1231.
13. Preventing Tobacco Use Among Young People: A Report of the Surgeon General. Atlanta, Ga: US Dept of Health and Human Services; 1994.
14. Lynch BS, Bonnie RJ. Growing Up Tobacco Free: Preventing Nicotine Addiction in Children and Youths. Washington, DC: Institute of Medicine, National Academy Press; 1994.
15. Executive Summary, the Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents. Washington, DC: US Food and Drug Administration; 1996.
16. Hearings Before Senate Judiciary Committee, 105th Cong, 1st Sess (1997) (testimony of Lawrence Tribe).
17. Hearings Before Senate Judiciary Committee, 105th Cong, 2nd Sess (1998) (testimony of Martin Redish).
18. Schudson M. Symbols and smokers: advertising, health messages and public policy. In: Rabin RL, Sugarman SD, eds. Smoking Policy: Law, Politics, and Culture. New York, NY: Oxford University Press; 1993:208–225.
19. Saffer H, Chaloupka F. The effect of tobacco advertising bans on tobacco consumption. J Health Econ.2000;19: 1117–1137.[Medline]
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