St. Mary's Law Journal


Joe R. Hinojosa


In 1996 the Food and Drug Administration (FDA) promulgated regulations affecting the advertising, sale, and promotion of tobacco. President Clinton supported the FDA’s claim it has the power to regulate tobacco products not as drugs, but as medical delivery devices of nicotine. Meaning tobacco sellers, retailer, distributors, and manufacturers would be subject to strict rules concerning how and where tobacco products may be advertised, distributed, and promoted. Despite the FDA’s claims, these measures were oriented toward discouraging children from smoking. Opponents of the regulations claim the restrictions constitute blatant infringement of commercial speech. The FDA argues that while advertising is protected speech, tobacco advertising directed toward minors is not, as it is illegal for minors to purchase tobacco products. Thus, making limitations permissible under the commercial speech doctrine. While it is an admirable goal, the manner being used by the FDA may be unconstitutional under the First Amendment. Legal commentators have also declared the provisions constitutionally infirm following the decision of 44 Liquormart, Inc. v. Rhode Island. In 44 Liquormart, the court acknowledged the vulnerability commercial speech has to regulation. The Court asserted “special care” should be given when reviewing regulations which ban commercial speech completely absent claims of deception or illegal activity. Moreover, complete bans to commercial speech are a dangerous affront to the First Amendment since it would foreclose all alternative means of providing specific information. Although the FDA advertising rules have been touted as common sense provisions with reasonable limitations, many of the provisions may prove ineffective and may also violate the tobacco industry’s commercial speech rights. The Supreme Court has stated commercial speech must be protected under the First Amendment, and the government has a heavy burden to justify infringing upon those rights.


St. Mary's University School of Law