"Virginia Slims-It’s a woman thing."
A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.
Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."
Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?
This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.
The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.
But the First Amendment issue will keep coming back. The FDA will seek to reinstate its proposed advertising restrictions on appeal; the Federal Trade Commission seems poised to make its own attack on tobacco ads; New York and other cities may join Baltimore in imposing curbs; and any global settlement growing out of negotiations between the tobacco industry and its adversaries would require Congress to bless restrictions on advertising.
The tobacco companies (and others who profit from tobacco ads) are paying bundles to some of the best lawyers in the land to wrap the First Amendment around such ads. But the regulators have the better of the argument-with an assist from the lawyer who won the first Supreme Court ruling ever affording First Amendment protection to commercial speech, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) .
That lawyer is Alan Morrison of the Public Citizen Litigation Group. As he and his colleagues Allison Zieve and David Vladeck contended in an amicus brief in the FDA litigation, while "commercial speech is entitled to substantial protection," the First Amendment does not mean that "a powerful seller-the tobacco industry-[may use] its resources to saturate the marketplace to promote dangerous products to impressionable minors."
The tobacco companies insist that their multibillion-dollar annual investment in advertising and promotion has neither the purpose nor the effect of hooking minors, but seeks solely to facilitate competition among rival brands for the dollars of confirmed adult smokers. Such claims are refilled by a mass of evidence.
There are internal documents, like the R.J. Reynolds marketing memorandum that stated: "If we are to attract the nonsmoker or presmoker, there is nothing in this type of product that he would currently understand or desire. Instead, we must somehow convince him with wholly irrational reasons that he should try smoking." There is also the common-sense perception that advertising aimed at enticing (say) 21-year-olds will entice teen-agers too.
And there is a large body of evidence that tobacco ads have, in fact, had a huge impact on teen-agers, whose smoking rates have soared. Camel’s share of the youth cigarette market rose from some 3 percent before its "Joe Camel" campaign to 13 to 16 percent within six years. Studies have also found a striking rise in smoking rates for teen-age girls after women were targeted by major promotional campaigns.
In any event, given the illegality in every state of selling tobacco products to minors, even the tobacco industry has had to concede the validity of curbing ads "directed at or primarily received by those under 18," in the words of tobacco lawyer Daniel Troy of D.C.’s Wiley, Rein & Fielding, during the Feb. 10 argument before Judge Osteen. "A ban on tobacco advertising in [the] Weekly Reader or Boys Life… would plainly be OK," Troy conceded. And the tobacco industry acquiesced long ago to the 1970 act of Congress that ended all cigarette advertising on television.
Similar logic would presumably force the tobacco companies to accept a ban on, say, cigarette billboards at the entrances to school parking lots-whether the ads were explicitly aimed at children (with images of Big Bird or Sabrina, the Teen-Age Witch) or at the mothers who dropped them off.
So we are in the realm of line-drawing and balancing-"narrow tailoring," to borrow Supreme Court buzzwords. And in that realm, the government "is entitled to reasonable latitude, particularly where no blanket ban is involved and the industry is left numerous alternative means of communication," in the words of the Public Citizen brief. For example, it notes, "limiting advertisements that young people are likely to see to a black-and-white, text-only format required the FDA to draw a bright line, and it drew that line at publications with 15 percent minor readership or 2 million minor readers. The industry did not suggest any alternative lines that would serve the FDA’s goals in a less intrusive way."
Likewise, while attacking the FDA’s ban on outdoor ads within 1,000 feet of a school or playground, the industry has not said where else a constitutional line could be drawn- whether at the 500-foot mark, as suggested in the industry’s own voluntary code, or perhaps at the schoolhouse door.
Rather, tobacco lawyers warn hyperbolically that allowing restrictions like those proposed by the FDA would start us down a slippery slope toward censorship of advertising of cholesterol-clotted steaks, ice cream, and gosh knows what else. But in reality, the slope is not all that slippery. It is illegal to sell tobacco (or alcohol) to minors; much tobacco advertising demonstrably undermines that ban; and tobacco is the only legal product that kills its customers when used as intended and in moderation.
Defenders of tobacco ads seek to have it both ways: They attack the FDA’s comprehensive restrictions as "a dramatically overbroad ban" (in Troy’s words) that would leave open too few avenues for the industry to advertise effectively to adults. On the other hand, the Baltimore law restricting billboard ads was attacked (by advertising companies) as too narrow to be effective, because it left open so many alternative avenues for ads.
But as the Supreme Court held in Florida Bar v. Went For It (1995), "Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression."
Tobacco lawyers find more comforting some of the justices’ language in last year’s splintered ruling in 44 Liquormart v. Rhode Island. The Court’s holding, however, is inapposite to FDA-style restrictions on advertising of tobacco (or of liquor, for that matter). The holding was that an absolute state ban on liquor price advertising violated the First Amendment when the evidence showed it to be completely ineffective in achieving its only ostensible goal-to promote temperance by raising prices (not to protect children)-and when prices could be raised much more effectively by a tax increase. The FDA is not proposing to ban price advertising or other purely informational ads for tobacco, and the evidence suggests that the restrictions it has proposed would save lives.
Indeed, advertising curbs may be the best tool available to pursue the paramount goal of reducing the number of kids who start smoking-especially compared with the billions in damage awards sought by states and individuals in suits against the tobacco industry. Such a massive transfer of wealth from the merchants of death to almost anybody else (even the trial lawyers) might be a good thing. But how many kids would it prevent from smoking?
Some, surely, due to higher prices. Studies suggest however, that most kids who smoke aren’t very price-sensitive, preferring the most advertised, most expensive brands to cheaper generic cigarettes.
Advertising curbs cannot solve our tobacco problem. Even prohibition would not do that (Witness our cocaine problem.) But advertising curbs could save thousands, even millions, of lives. And the First Amendment, properly construed, can coexist very nicely with reasonable restrictions on the kind of information-free, be-cool, image advertising represented by the Marlboro Man, Joe Camel, and that Virginia Slims billboard.