A Bill pending before the House Commerce Committee that would impose severe federal restrictions on the promotion of tobacco products is unconstitutional because it violates the First Amendment rights of those who wish to engage in promotion of tobacco products and of those who wish to receive such information.

That is the conclusion of the Washington Legal Foundation (WLF), who conducted a constitutional analysis of the legislation at the request of U.S. Representative Nathan Deal, a member of the Commerce Committee’s Public Health Subcommittee. WLF’s 12-page analysis, submitted on May 19, 2000, stated that the legislation (H.R. 4207) could not withstand First Amendment challenge because it imposed restrictions that are not narrowly tailored to the goal that the legislation hopes to achieve: a reduction in youth smoking.

H.R. 4207 would grant the Food and Drug Administration (FDA) the authority to regulate tobacco products. In 1995, FDA asserted that it had such authority, and it attempted to impose burdensome restrictions on tobacco promotion. The Supreme Court ruled earlier this year that Congress had never granted FDA authority to regulate tobacco products. H.R. 4207 would not only grant FDA authority to regulate tobacco, but would also put into place the burdensome restrictions that FDA had previously attempted to impose.

In its constitutional analysis, WLF noted that FDA critics (including WLF) have long argued that the proposed FDA promotion restrictions violate the First Amendment. The three courts that examined the FDA restrictions concluded that FDA lacked authority to impose any sort of regulations on the tobacco industry and thus there was no need for them to address the First Amendment issue. WLF told Representative Deal that the failure of the courts to address the constitutional issue should not be viewed as an indication that the courts believed that FDA’s regulations presented no constitutional problems.

The FDA advertising restrictions would, among other things, (1) require that any print advertising appear in a black-and-white text-only format unless the publication in which it appears is read almost exclusively by adults; (2) prohibit outdoor advertising within 1,000 feet of any public playground or school; (3) prohibit the distribution of any promotional items, such as T-shirts or hats bearing the manufacturer’s brand name; and (4) prohibit a manufacturer from sponsoring any athletic, musical, artistic, or other social or cultural events using its brand name.

WLF is a nonprofit public interest law and policy center with supporters in all 50 states. WLF devotes a substantial portion of its resources to protecting commercial free speech. WLF does not engage in lobbying activities and has taken no position regarding whether H.R. 4207 should be adopted.

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For further information, contact WLF Chief Counsel Richard Samp, (202) 588-0302.