Crossroads of tobacco advertising regulations and the First Amendment

Issue

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.

Description

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.

Recommendations

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).