255136 First Amendment Challenges to Public Health Laws: Reconsidering Commercial Speech Arguments in Tobacco Cases

Tuesday, October 30, 2012 : 11:30 AM - 11:50 AM

Micah Berman, JD , Center for Public Health and Tobacco Policy, New England Law | Boston, Boston, MA
Ilana Knopf, JD , Center for Public Health and Tobacco Policy, New England Law | Boston, Boston, MA
The 2009 Family Smoking Prevention and Tobacco Control Act (TCA) provides state and local governments with expanded authority to regulate tobacco-related adverting and promotion. However, it is likely that any such restrictions will be challenged by the tobacco industry as violating the First Amendment. Recent Supreme Court cases have shown the Court to be more sympathetic to the argument that commercial speech is entitled to a significant degree of First Amendment protection.

We have been providing policy support to tobacco control advocates in New York State who are encouraging local governments to adopt measures to limit tobacco marketing at the point-of-sale. To facilitate this effort, we have carefully reviewed First Amendment case law and are developing a “model brief” that local communities can use if their laws are challenged.

This presentation will discuss our conclusions regarding the strongest legal arguments that state and local governments can use to defend tobacco-related laws against First Amendment challenges (including some that have not been raised in previous lawsuits). Our conclusions have wider applicability to other public health issues, such as limits on food marketing. This presentation will also include drafting recommendations relevant to potential legal challenges.

Learning Areas:
Public health or related laws, regulations, standards, or guidelines
Public health or related public policy

Learning Objectives:
Describe the Central Hudson test that courts use to evaluate the constitutionality of restrictions on commercial speech. Explain the arguments that state or local governments could use to establish that restrictions on tobacco industry marketing comply with the Central Hudson test. Discuss how tobacco control measures (and other public health measures) can be drafted to maximize the likelihood of surviving a First Amendment challenge.

Keywords: Law, Tobacco

Presenting author's disclosure statement:

Qualified on the content I am responsible for because: I am a law school professor who has taught and written about First Amendment cases relating to public health. I also direct a center the provides technical assistance to state and local governments on tobacco control issues.
Any relevant financial relationships? No

I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines, and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed in my presentation.

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