American Journal of Law & Medicine

Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada


In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA's) proposed graphic health warnings for cigarette packages violated tobacco companies' First Amendment rights. (1) In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries' experiences by stating (first at oral argument and then in his decision) that "none of [those countries] afford First Amendment protections like those found in our Constitution." (2)

While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. (3) Indeed, several other countries apply "strikingly similar" legal tests when reviewing restrictions on speech (and on commercial speech in particular). (4) Thus, the statement that other countries do not "afford First Amendment protections like those found in our Constitution" is an oversimplification. (5) Rather than ignore how other countries have addressed tensions between freedom of expression and other societal interests (such as public health), a comparative analysis can help enrich our understanding of the First Amendment by introducing new perspectives and doctrinal considerations that may challenge our settled assumptions. (6)

Applying a comparative perspective, this Article will focus on the protection afforded to commercial speech, (7) and to tobacco advertising in particular. For purposes of this Issue, I will focus solely on the example of Canada. Like the United States, Canada has a constitutional provision that protects freedom of speech, and in commercial speech cases it applies a balancing test that is almost identical to the Central Hudson test used by U.S. courts. (8) It is important to emphasize, however, that the case of Canada is not unique in these respects. Other countries and jurisdictions--including South Africa, (9) Japan, (10) and the European Union (11)--also use Central Hudson-like balancing tests when reviewing restrictions on commercial speech. Each jurisdiction has come to its own conclusions about how to best balance commercial speech rights against the challenge of regulating tobacco marketing. My discussion of Canada's approach is presented here as one example of a broader comparative analysis that could be undertaken.

Carefully examining how other countries strike the balance between free expression and public health could lead to a productive reexamination of the First Amendment's commercial speech doctrine and its purpose. In particular, as the example of Canada demonstrates, a comparative discussion can help to reintroduce the interests of the consumer into the debate over commercial expression rights. From the perspective of the consumer, not all commercial speech is equally valuable, and not all government restrictions on speech infringe upon consumer autonomy. To the contrary, regulations on speech can protect consumers from the deceptive and manipulative marketing of harmful products such as tobacco.


To make the comparison with Canada, it is first necessary to quickly review how the U.S. Supreme Court has approached commercial speech cases. The First Amendment states, "Congress shall make no law ... abridging the freedom of speech, or of the press...." (12) Although the text is unqualified, suggesting that freedom of speech can never be restricted, the Supreme Court has developed a complex set of First Amendment doctrines that apply different levels of protection to different types of speech. (13) These doctrines--including the commercial speech doctrine--are non-textual judicial creations whose applications vary over time and with changes in the Supreme Court's makeup. (14)


Before the mid-1970s, the Supreme Court did not consider commercial speech to be protected by the First Amendment at all. (15) In a series of cases culminating in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme Court changed course and decided that the First Amendment's protections extended to commercial speech. (16) In Virginia Pharmacy, the Court struck down a Virginia regulation that prohibited pharmacists from advertising the price of prescription drugs. (17) In the course of its decision, the Court (in an opinion by Justice Blackmun) provided three reasons why commercial speech should be entitled to First Amendment protection. (18) As summarized by Eric Barendt:

   The first focused on the interests of consumers in the free flow of
   commercial information: "[T]hat interest may be as keen, if not
   keener by far, than his interest in the day's most urgent political
   debate.' Secondly, society has a strong interest in the unimpeded
   flow of commercial information, partly because that information may
   have a public interest component, but more generally because the
   flow is important in enabling consumers to make informed choices,
   which cumulatively are essential to the working of a
   free-enterprise economy. Thirdly, for the state to justify its ban
   on the publication of drug prices with the argument that otherwise
   consumers would be attracted to go to low-cost, low-quality
   pharmacist is unacceptable paternalism. (19)

In short, the majority in Virginia Pharmacy reasoned that commercial speech should be protected because of the interests of the consumer in obtaining information needed to make decisions, even if those decisions are purely economic in character. (20) (Note that the plaintiff in Virginia Pharmacy was a consumer group interested in obtaining price-related information, not a pharmacist looking to distribute such information.) (21)

Virginia Pharmacy balanced the consumers' interest in obtaining price-related information against the state's argument that the regulation was needed to protect the professionalism of pharmacists. Suggesting that the regulation seemed more like a protectionist measure meant to ensure higher drug prices than a bona fide measure to ensure professionalism, the Court ruled that regulation was invalid. (22) It left open the question of how such balancing should be conducted in future cases--an issue that the Court addressed four years later in Central Hudson.

In Central Hudson, the Court developed a four-pronged test that has been used for the past twenty-plus years to review restrictions on commercial speech. (23) The Central Hudson test provides:

1. To qualify for First Amendment protection, the commercial speech must concern lawful activity and not be misleading. (24)

2. The government's asserted interest in restricting the speech must be substantial. (25)

3. The restriction must directly advance the government's asserted interest. (26)

4. The restriction must not be more extensive than necessary to serve the asserted government interest. (27)

This test is a form of "intermediate scrutiny." (28) It provides some protection to commercial speech, but is clearly a less rigorous form of review than that afforded to "core" First Amendment speech such as political speech. (29) Courts are, in effect, asked to balance the government's interest in restricting the speech against the constitutional value of the commercial speech at issue. (30) Although the Central Hudson test provides a framework for courts to use in reviewing commercial speech cases, it does not provide any clear guidance as to how the framework is to be applied in any particular case. Whether a regulation is "more extensive than necessary," for example, is a context-specific judgment call not amenable to broad generalizations. (31)

What can be said, however, is that the Court has, over time, been less willing to defer to a legislature's conclusion that a particular restriction on speech is required. Though it continues to apply Central Hudson's intermediate standard of review, in recent years the Court has "continued to strike down commercial speech regulations under what increasingly has looked like a strict scrutiny standard." (32) A few key points in the Court's progression towards a more demanding standard of review are summarized below:

* 1993: In Edenfield v. Fane, the Court appeared to raise the evidentiary burden placed on the government, writing that the state must show that the proposed restriction will advance its interest "to a material degree," and suggesting that specific studies may be needed to support a restriction on commercial speech. (33)

* 1996: In 44 Liquormart v. Rhode Island, the Court rejected the argument that since the government could completely ban "vice" activities such as drinking or gambling, it should be able to more freely regulate commercial speech relating to such activities. (34) Earlier commercial speech decisions had accepted such an argument. (35)

* 2002: In a five-to-four ruling in Thompson v. Western States Medical Center, the Court stated: "[W]e have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do SO." (36) In other words, it suggested that a restriction on commercial speech must be the last resort, if non-speech-related options were available.

In its most recent commercial speech case, Sorrell v. IMS Health Inc. (2011), the Court suggested that "heightened scrutiny" should apply to commercial speech cases, intimating that the Central Hudson test might be replaced with a more stringent standard. (37) Ultimately, the Court reaffirmed Central Hudson as the appropriate test, but wrote, "[T]he State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. …

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