The authors examine the FDA's proposed regulations restricting the advertising of tobacco products in an attempt to determine if the four-prong test in Central Hudson and Electric Corporation v. Public Service Commission (1980) is met. On the basis of previous court decisions regarding commercial speech, the authors suggest that the proposed advertising restrictions should withstand constitutional challenge. Implications for marketing professionals are discussed.
Get full access to this article
View all access options for this article.
References
1.
44 Liquormart, Inc. v. Rhode Island (1996), 517 U.S. —, 116 S. Ct. 1495.
2.
American Advertising Federation et al. v. David A. Kessler and Donna Shalalal (1995), (M.D.N.C.) No. 2:95CV00593.
3.
Anheuser-Busch, Inc. v. Schmoke (1995), 63 F.3d 1305 (4th Cir.), cert. granted, judgment vacated, case remanded (1996) — U.S.—, 116 S. Ct. 1821.
4.
Bigelow v. Virginia (1975), 421 U.S. 809.
5.
Board of Trustees of the State University of New York v. Fox (1989), 492 U.S. 469.
6.
BoedeckerKarl A., MorganFred W., and WrightLinda Berns (1995), “The Evolution of First Amendment Protection for Commercial Speech,”Journal of Marketing, 59(January), 39–47.
7.
Central Hudson Gas and Electric Corporation v. Public Service Commission (1980), 447 U.S. 557.
8.
Coyne Beahm et al. v. U.S. Food and Drug Administration (1995), (M.D.N.C.) No. 2:95CV00591.
9.
CummingsK. M., PechacekT., and ShoplandD. (1994), “The Illegal Sale of Cigarettes to U.S. Minors’ Estimates by State,”American Journal of Public Health, 84(February), 300–302.
10.
Dunagin v. City of Oxford, Mississippi (1983), 718 F.2d 738 (5th Cir.).
11.
EscobedoL. G., MarcusS. E., HoltzmanD., and GiovinoG. A. (1993), “Sports Participation, Age of Smoking Initiation, and the Risk of Smoking Among U.S. High School Students,”Journal of American Medical Association, 269, 1391–95.
12.
Federal Cigarette Labeling and Advertising Act (1967), 15 U.S.C. Section 1331.
13.
Florida Bar v. Went For It, Inc. (1995), 515 U.S. —, 115 S.Ct. 2371.
14.
Food and Drug Administration (1995), “Proposed Rules,” 60 Fed. Reg. (155), 41314–451.
15.
George H. Gallup International Institute (1992), Teenage Attitudes and Behavior Concerning Tobacco.Princeton, NJ: George H. Gallup International Institute.
16.
HatchDenison (1994), “Say It Ain't So, Joe…,”Target Marketing, 17(7), 3.
17.
Institute of Medicine (1994), Growing Up Tobacco Free: Preventing Nicotine Addiction in Children and Youths.Washington, DC: Institute of Medicine of the National Academy of Science.
18.
JasonL. A. (1990), “Active Enforcement of Cigarette Control Laws of the Prevention of Cigarette Sales to Minors,”Journal of the American Medical Association, 266(December), 3159–61.
19.
JohnstonL. D., O'MalleyP. M., and BachmanJ. G. (1994), National Survey Results on Drug Use, The Monitoring the Future Study, 1975–1993, Volume 1: Secondary School Students. NIH Pub. No. 94–3409, 79, 9. Washington, DC: National Institute on Drug Abuse, National Institute of Health, Public Health Service, Department of Health and Human Services.
20.
MandelRichard P. (1994), “Regulation of Commercial Speech: Did the 1993 Supreme Court Decisions Clarify the Scope of First Amendment Protection?”Journal of Public Policy & Marketing, 13(Spring), 159–62.
21.
Metromedia v. San Diego (1981), 453 U.S. 490.
22.
Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore (1995), 63 F.3d 1318, (4th Cir.), cert. granted, judgment vacated, case remanded (1996)—U.S.—, 116 S. Ct. 2575.
23.
PettyRoss (1993a), “Advertising and the First Amendment: A Practical Test for Distinguishing Commercial Speech From Fully-Protected Speech,”Journal of Public Policy & Marketing, 12(2), 170–77.
24.
PettyRoss (1993b), “Joe Camel and the Commission: The Real Legal Issues,”Journal of Public Policy & Marketing, 12(2), 276–81.
25.
PollayRichard W. (1996), “The Last Straw? Cigarette Advertising and Realized Market Shares Among Youths and Adults, 1979–1993,”Journal of Marketing, 60(April), 1–16.
26.
Posadas de Puerto Rico Associates v. Tourism Company (1986), 478 U.S. 328.
27.
TaioliE., and WynderE. L. (1991), “Effect of the Age at Which Smoking Begins on Frequency of Smoking in Adulthood,”New England Journal of Medicine, 325, 968–69.
28.
U.S. Department of Health and Human Services (1990), Healthy People 2000.Washington, DC: Public Health Service, Department of Health and Human Services, (September), 1–8.
29.
U.S. Department of Health and Human Services (1993), “Cigarette Smoking—Attributable Mortality and Years of Potential Life Lost—United States, 1990,” in Morbidity and Mortality Weekly Report Number 33, Vol. 42. Washington, DC: Center for Disease Control and Prevention, Department of Health and Human Services, 645–49.
30.
U.S. Department of Health and Human Services (1994), Preventing Tobacco Use among Young People: A Report of the Surgeon General.Atlanta, GA: Center for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Prevention, Office on Smoking and Health, Public Health Service, Department of Health and Human Services, 141.
31.
United States and Federal Communications Commission v. Edge Broadcasting (1993), 509 U.S. 418, 427, 113 S.Ct. 2696, 2704.
