Smoking and the First Amendment

Abstract

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law. For the first time, Congress had given the Food and Drug Administration authority to directly regulate tobacco products, with the aim of improving public health. And indeed, effective tobacco control would be a remarkable public health achievement and might be possible if the law is allowed to stand. But on November 7, 2011, a federal judge in Washington, D.C., issued a preliminary injunction blocking some of its key provisions as unconstitutional restrictions on commercial speech, and the battle seems likely to end up in the Supreme Court. The Tobacco Control Act made three changes to cigarette warnings. First, existing warnings on cigarette packages must be replaced with nine new specified verbal warnings one of which must appear on every package. Second, nine new graphic images must be paired with the textual warnings on a rotating basis. Finally, companies must move the warnings from the side of the package and devote at least the top 50% of both the front and back panels to the government mandated messages. Powerful corporations are increasingly using an expanding definition of the first amendment to challenge public health regulations. For public health advocates, one lesson is that the purpose and mechanism for new regulations must be carefully articulated and documented, especially if any conceivable First Amendment issue can be raised. Emphasis should also be placed on regulations such as bans on smoking in public places, increased taxes to discourage consumption, raising the legal age for tobacco use, smoking-cessation programs including health insurance incentives, and outright bans on tobacco use all of which are free from First Amendment concerns. (PsycINFO Database Record (c) 2012 APA, all rights reserved)