American Journal of Law & Medicine

Ashes to ashes: why FDA regulation of tobacco advertising may mark the end of the road for the Marlboro Man.

I. INTRODUCTION

Despite education campaigns about the health hazards associated with smoking and the use of smokeless tobacco, teenage use of tobacco products has reached epidemic proportions. Recent studies indicate that adolescent smoking is on the rise, and that children are beginning to smoke at progressively earlier ages.(1) "Nearly 3,000 young people start smoking each day," accounting for more than one million new smokers each year.(2) In addition, ninety percent of all new smokers are under the age of eighteen.(3)

Although young people are generally aware of the serious, long-term health risks associated with tobacco use, studies suggest that those who smoke do not usually view those risks as applying to them personally.(4) Furthermore, evidence shows that young people who begin to smoke know about the addictive properties of nicotine, but do not believe that they will become addicted.(5) For these reasons, in August 1995, the Food and Drug Administration (FDA) proposed strict regulations aimed at reducing the number of children and adolescents who smoke.(6) Several of these provisions target cigarette advertisements aimed at minors.(7)

In August 1996, President Clinton endorsed the final version of these regulations;(8) most of these were set to go into effect on August 28, 1997.(9) However, in anticipation of that date, the tobacco industry and other smoking advocates filed a summary judgment motion against the FDA in the Middle District of North Carolina,(10) arguing, among other things, that the regulations violate the First Amendment rights to commercial speech.(11) On April 25, 1997, the district court issued its ruling, in which both sides lost on key issues.(12) Although the court affirmed the FDA's authority to regulate tobacco, it also held that the agency had gone too far and could not impose limits on cigarette advertising and promotion.(13) Consequently, both sides appealed the ruling to the Fourth Circuit, where a decision is pending.(14)

This Note examines the major legal issues surrounding the constitutionality of the FDA's regulations. Part II discusses the correlation between advertising and cigarette consumption by children and adolescents. Part III reviews the federal government's role in the antismoking campaign as well as the tobacco industry's response to past legislative restrictions on advertising. This section also explores how the shift in advertising medium has affected teen smoking and why the FDA chose to implement regulations that further restrict commercial speech relating to tobacco advertising. Part IV analyzes the particular issues that courts must confront in determining whether the FDA regulations violate the First Amendment protection of commercial speech. Part V considers possible alternatives to the regulations. Part VI examines what impact, if any, last year's national tobacco settlement will have on the regulations and whether such a settlement is even feasible. This Note concludes that, while the FDA's regulations are restrictive, they are, nonetheless, constitutional because they: (1) directly advance the federal government's interest in reducing teen smoking; (2) are not more restrictive than necessary to achieve this goal; and (3) offer the best solution for stemming the rising fide of teen smoking.

II. THE CAUSAL CONNECTION BETWEEN CIGARETTE ADVERTISEMENTS AND TEEN SMOKING

"Approximately three million American adolescents already smoke, and an additional one million adolescent boys use smokeless tobacco."(15) Part of the reason for the rise in tobacco use is the ease with which children and adolescents can purchase cigarettes.(16) Despite laws in all fifty states that prohibit the sale of tobacco to minors, adolescents have little difficulty purchasing tobacco products.(17) In 1994, the Surgeon General determined that minors are able to purchase cigarettes illegally nearly seventy percent of the time.(18) Researchers estimate that young people illegally purchase approximately 250 million packs of cigarettes each year, accounting for $962 million in revenue.(19)

Lack of monitoring and poor supervision are the primary reasons why minors can so easily purchase cigarettes. First, proprietors and vendors infrequently ask minors purchasing cigarettes and smokeless tobacco for identification.(20) Second, vending machines allow children to purchase cigarettes virtually unnoticed.(21) Surveys show that children who purchase cigarettes from vending machines are successful nearly eighty-eight percent of the time.(22) Third, many grade-school students who smoke daily buy or shoplift cigarettes from self-service displays, which permit quick and easy access to the products.(23) Fourth, adolescents can successfully obtain tobacco products by redeeming coupons through the mail.(24) Finally, children and adolescents also obtain free samples of cigarettes from vendors, who distribute the samples in public places such as street comers, festivals and concerts.(25)

Easy access is not the only factor behind the increase in teen smoking. Many antismoking advocates, including President Clinton, blame cigarette manufacturers for targeting young people and using flashy advertisements to encourage them to smoke.(26) Because "[t]eenagers are typically less secure in their identities than most groups in the population, ... [t]hey are more subject to social pressure."(27) As such, they tend to experiment with different adult identities and are more attentive to advertising than most other groups.(28) Recent studies indicate that teenagers disproportionately buy the most heavily promoted cigarette brands.(29) Eighty-six percent of adolescents who smoke buy the three most heavily advertised brands, in contrast to adults, who are more likely to buy "generic" brands, which are less expensive and not well advertised.(30) Sadly, the cultural effects of cigarette advertising are not limited to teenagers. One study found that thirty percent of three year Olds and ninety-one percent of six year olds could identify Joe Camel as a symbol of smoking.(31) In a separate study, researchers asked children aged eight to thirteen to recall cigarette brands,(32) a staggering ninety percent recalled the Camel brand, while seventy-three percent remembered Marlboro.(33)

For years, tobacco companies consistently denied that they were marketing cigarettes to minors, and insisted that their advertising was exclusively directed to maintain or increase market share among adults.(34) On March 20, 1997, however, the solidarity among the companies changed. In an unprecedented concession to settle lawsuits with twenty-two state attorneys general,(35) the industry's smallest tobacco company, the Liggett Group, admitted that the industry markets its products to underage youths.(36) In addition, the company agreed to turn over thousands of internal documents, waiving its right to claim confidentiality for papers that ordinarily would be covered by the attorney-client privilege.(37) Some of those documents involve joint discussions between attorneys for Liggett and other tobacco companies and could support allegations that the companies deliberately hid research showing that cigarettes are addictive.(38) Although the impact this development will have on the tobacco industry remains to be seen, it nonetheless provides the FDA with powerful ammunition to fight lawsuits challenging the regulations.(39)

Among the strongest evidence supporting the FDA's position are recently released internal memos that show the tobacco industry developed a "direct advertising appeal to younger smokers."(40) Several memos, for example, show that R.J. Reynolds, the nation's number two cigarette maker, targeted teenagers as young as thirteen and even created a brand specifically aimed at boys.(41) Other documents illustrate that R.J. Reynolds's popular and highly controversial Joe Camel campaign targeted teens despite the company's repeated denials.(42) In addition, as recently as 1988, the company planned to saturate areas where teenagers gathered, such as fast-food restaurants, video game arcades and outdoor basketball courts, with billboard and poster advertisements.(43) All of these documents directly contradict R.J. Reynolds Chairman James Johnson's 1994 statement to Congress that, "We do not market to children and will not."(44) Furthermore, several memos implicate a similar marketing strategy by R.J. Reynolds's chief competitor, Philip Morris, which is also the nation's largest tobacco company.(45) Although both companies continue to deny that they market to children, these memos clearly indicate awareness of their market share among teenagers, as well as the industry's willingness to market cigarettes to children through direct advertising.(46)

In fairness, cigarette advertising plays an uncertain role in prompting children and adolescents to smoke, even where that advertising directly targets underage smokers. However, one need not look for the intended result. For example, tobacco companies usually locate advertising in markets where it can reach a large population of children and teenagers.(47) For example, children routinely see billboard and magazine advertisements that relate to tobacco products.(48) Many tobacco companies also advertise at sporting events, effectively reaching children in large numbers, either by virtue of actual attendance or television broadcast.(49) Further, although it may be unfair to suggest that cigarette advertising affects every child exposed to it, it is clear that the advertising affects a significant segment of that population.(50) Even if cigarette advertising contributes to the decision to smoke in just two out of every 100 teenagers, that means that it causes nearly twenty thousand minors a year to take up the habit.(51) Compare that number to the number of children who will die as a result of smoking-related illnesses, and the numbers are staggering.(52)

In response to this public health crisis, President Clinton announced strict regulations that would allow the FDA to curtail severely cigarette advertising targeted at minors.(53) The move follows several years of studies by the FDA into the health risks associated with nicotine as well as the effect of advertising and marketing by the tobacco industry on children and adolescents.(54)

FDA researchers found that nicotine in cigarettes and smokeless-tobacco products is an addictive drug and that tobacco products are drug-delivery devices under the terms of the Federal Food, Drug, and Cosmetic Act (FDCA).(55) Indeed, at least one top executive in the tobacco industry broke with tradition and conceded that point.(56) The studies also indicated that smoking often begins in childhood as a "pediatric disease" and is attributable, in part, to the influence of tobacco advertising methods.(57) In response to these studies, the FDA proposed a regulatory program that would "reduce the use of cigarettes and smokeless tobacco by young people by limiting their advertising and sale."(58) Under its authority to regulate tobacco products, the FDA proposed the most restrictive measures for cigarette advertising to date. After some modifications, President Clinton endorsed the final version of the FDA's regulations.(59) Most of the regulations were originally scheduled to go into effect in August 1997, and contain several provisions aimed at reducing the number of children and adolescents who smoke.(60) First, the regulations prohibit the sale of tobacco products to anyone under eighteen years old and require retailers to check photographic identification for everyone age twenty-six and younger.(61) Second, the regulation's prohibit the distribution of free samples, kiddie packs and most sales of single cigarettes.(62) In addition, the regulations ban all vending machines except in adult-only establishments with age-restricted access, such as bars and nightclubs.(63) Furthermore, while permitting mail-order sales, the regulations prohibit redemption of coupons for cigarettes or smokeless tobacco through the mail.(64)

The regulations' most restrictive and controversial measures, however, are aimed directly at tobacco advertising. The regulations prohibit advertisements within 1000 feet of playgrounds and schools.(65) Billboard advertisements located more than 1000 feet from schools must be in a black and white, text-only format.(66) Second, the regulations require tobacco advertisements in publications with a youth readership exceeding fifteen percent or two million readers to be in a black and white, text-only format.(67) Finally, the regulations prohibit the manufacture and distribution of all promotional items and bar brand-name sponsorship of all sporting events, individuals, cars and teams.(68)

By restricting the use of billboard and magazine advertising, as well as prohibiting promotional items and brand-name sponsorship of sporting events, the FDA targeted what it believes are among the most effective advertising media for reaching young people.(69) In 1993, tobacco companies' expenditures for advertising and promotion exceeded six billion dollars.(70) Accordingly, FDA officials reviewed scores of studies that establish a direct correlation between cigarette advertisements and its impact on teenage smoking.(71) The studies indicated that: (1) young people encounter wide exposure to cigarette advertising; (2) they are aware of the advertising; and (3) it influences their behavior.(72) For example, one recent survey showed that forty-six percent of children eight to thirteen years old identified billboards as the most visible medium for cigarette advertisements.(73) In addition, at least half of adolescents who smoke and one-quarter of adolescents who do not smoke own promotional items that bear tobacco brand names.(74) Finally, studies show that sponsorship of sporting events associates the use of tobacco products with events young people think of as fun, exciting or glamorous and creates a "friendly familiarity" with tobacco.(75)

Although the FDA's regulations intend to protect American children from a "lifelong addiction that often leads to a premature death,"(76) the regulations, as announced in their final version, prompt serious debate as to whether this restriction of commercial speech violates the First Amendment.(77) By limiting tobacco advertising in the media to a "tombstone" or black and white, text-only format, the FDA intends to preserve the textual information for adult smokers while eliminating the colorful imagery that makes cigarette advertising attractive and compelling to young people.(78) However, the tobacco industry and other smoking advocates argue that the restrictions violate the First Amendment by infringing on commercial speech.(79) Not long after the FDA announced the regulations, tobacco manufacturers, advertising companies and several states filed lawsuits claiming, among other things, that the FDA lacks jurisdiction to regulate tobacco and that the regulations are unconstitutional.(80) This Note only discusses the First Amendment issues surrounding the new FDA regulations. More specifically, this Note examines whether the FDA's regulations violate the commercial speech guidelines established by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission.(81)

III. BACKGROUND

A. THE FEDERAL GOVERNMENT'S ROLE IN THE ANTISMOKING CAMPAIGN

1. Current Federal Law

Although the FDA's involvement in the fight against tobacco use is relatively new, the federal government has played an active role in the antismoking campaign for over thirty years.(82) Prompted by the 1964 Surgeon General's report indicating the health risks associated with cigarette smoking, in 1965 Congress passed the Federal Cigarette Labeling and Advertising Act (FCLAA).(83) The purpose of the Act is "to establish a comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health."(84) The FCLAA requires all cigarette packages, billboards and advertising products to feature the warning label, "Caution: Cigarette Smoking May Be Hazardous to Your Health."(85) The act also preempts all state labeling requirements associated with smoking.(86)

The FCLAA also requires the tobacco industry to submit annual reports to the Secretary of the Department of Health and Human Services (HHS) listing all ingredients added to tobacco in the manufacture of cigarettes.(87) In addition, the Act requires the Secretaries of HHS and the Federal Trade Commission (FTC) to submit annual reports on the current information regarding the health risks of smoking; the manner and techniques used in cigarette advertising and promotion; and recommendations for legislation.(88) Finally, the FCLAA requires the Secretary of HHS to head a national program informing the public about the health risks associated with smoking,(89) and to submit a report on smoking to Congress.(90)

In 1970, Congress increased its regulation of the tobacco industry by amending the FCLAA and adopting the Public Health Cigarette Smoking Act of 1969 (PHCSA).(91) The PHCSA prohibits tobacco manufacturers from advertising on television and radio.(92) Prior to the 1970s, tobacco companies broadcast cigarette advertisements on television stations around the country.(93) According to one study, pro-cigarette advertising increased per capita consumption of cigarettes seventy-six cigarettes per year over the period 1950 to 1970.(94)

After the advertising ban went into effect, the federal government did not address cigarette advertising for nearly fifteen years. However, in response to new studies about the health consequences of smoking, Congress amended the FCLAA to require stronger warning labels on all methods of cigarette advertising.(95) In 1986, Congress extended these warnings to print advertisements and smokeless-tobacco products.(96) Like the FCLAA, the Comprehensive Smokeless Tobacco Health Education Act (CSTHEA) requires the Secretary of HHS to "carry out a program to inform the public of any dangers to human health resulting from the use of smokeless tobacco products."(97) In addition, the CSTHEA requires all smokeless-tobacco products and advertisements (other than billboard advertisements) to feature one of three warning labels similar to the warning labels required on cigarette packages.(98)

2. Recent Unsuccessful Federal Legislation

Although some may view the FDA's regulations as revolutionary, in fact, Congress proposed some of the current requirements ten years ago. Since 1987, Congress has considered at least seven bills that would have limited tobacco advertising near schools, imposed the controversial tombstone format on some tobacco advertisements, outlawed promotional items with tobacco brand names and given the FDA jurisdiction over the tobacco industry as a whole.(99) Unfortunately, all of these bills failed in committee and never reached the floor for a full vote by the House of Representatives.(100)

B. TOBACCO'S RESPONSE TO GOVERNMENT RESTRICTIONS ON ADVERTISING

Congress's goal of encouraging Americans not to smoke and not to use other tobacco products has arguably met with only limited success. Although adult use of tobacco products declined after past advertising bans and other legislation went into effect, the number of teenagers who use tobacco products continues to increase steadily.(101) Antismoking advocates blame this trend on the tobacco companies' response to the advertising bans on radio and television.(102) Faced with a complete blackout in those markets, many tobacco companies now concentrate their advertising efforts in other media, including billboards, sporting events, magazines and promotional items.(103) In addition, some companies reportedly use more creative methods to increase market share.(104) One company in particular, R.J. Reynolds, launched the now infamous Joe Camel campaign.(105) Antismoking advocates blame advertisements and cartoon characters like Joe Camel for encouraging children to smoke.(106) Even though it is difficult to establish a direct correlation between cigarette advertising and the increase in teen consumption, at least some evidence supports this contention. Ever since the Joe Camel campaign commenced, the share of teens who smoke Camels jumped from three to thirteen percent, while the proportion of adults who smoke Camels remained the same.(107)

After several years of investigating the Joe Camel campaign, on May 28, 1997, the FTC voted 3-2 to pursue charges of unfair advertising against R.J. Reynolds, charging that growing evidence suggests that the Joe Camel ads induced children to smoke.(108) Although R.J. Reynolds initially vowed to fight the complaint,(109) the company voluntarily retired the campaign in July 1997.(110) However, the FTC refuses to settle the unfairness complaint unless R.J. Reynolds signs an enforceable order preventing any revival of the Joe Camel campaign. …

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