Online Program

Crossroads of tobacco advertising regulations and the First Amendment

Wednesday, November 4, 2015 : 9:10 a.m. - 9:30 a.m.

Todd Fraley, JD, Programs and Policy Department, Respiratory Health Association, Chicago, IL
Kendall Stagg, JD, (Formerly) Chicago Department of Public Health, Chicago, IL
Joel Africk, JD, Respiratory Health Association, Chicago
Kate McMahon, MPH, Programs and Policy Department, Respiratory Health Association, Chicago, IL
Jennifer Herd, MHLP, Department of Public Health, City of Chicago, Chicago, IL
Brian Richardson, MBA, Chicago Department of Public Health, Chicago, IL

Tobacco advertising has moved almost entirely to the point-of-sale.  Research shows that  that exposure to tobacco marketing, particularly at the point-of-sale (“POS”), is associated with increased smoking initiation, weakened resolved not to smoke, impulse purchases, brand preference, and increased difficulty quitting.  When policymakers attempt to mitigate the effects of exposure to tobacco advertising, their efforts invariably draw preemption and First Amendment challenges.


The presentation evaluates two separate but related policy options for addressing the impact of POS tobacco advertising: (1) state and local restrictions on tobacco advertising; and (2) state and locally-mandated tobacco health warnings at the point-of-sale. 

Lessons Learned

Advertising restrictions and compelled POS health warnings both face high levels of judicial scrutiny.  Commercial speech restrictions must be narrowly tailored, formulated by evidence and research, not more excessive than necessary and not limit expressive or creative content.  Alternatives to such restrictions must be considered and documented accordingly.  Locally-mandated health warnings likewise implicate the preemption clause of the Federal Cigarette Labeling and Advertising Act (FCLAA) and the First Amendment.


This presentation concludes that the tobacco health warning policy option most likely to survive both preemption and First Amendment challenges would be a noncontroversial factual message, absent of graphic images, unambiguously attributable to the government, and placed away from cigarette displays and the register.  Because FCLAA applies only to cigarettes, a health warning specific to non-cigarette tobacco products would circumvent the federal preemption issue (though not the First Amendment).

Learning Areas:

Public health or related laws, regulations, standards, or guidelines
Public health or related public policy

Learning Objectives:
Discuss whether carefully drafted, tobacco advertising policies can survive First Amendment and preemption challenges.

Keyword(s): Tobacco Control, Law

Presenting author's disclosure statement:

Qualified on the content I am responsible for because: I am a fully licensed attorney in good status with the state bar of Illinois. I currently serve as the Health Policy Analyst for Respiratory Health Association (Chicago, IL). I have approximately four years of experience in tobacco control, including experience in policy analysis, advocacy, and state tobacco settlement litigation.
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.