The Family Smoking Prevention and
Tobacco Control Act, (H.R. 1256)may
be hazardous to your clients’ health.
Implications of the new tobacco regulations for the advertising of
adult businesses
Allen Lichtenstein
FALA Summer 2009 -- Vancouver
1
First -- The Good News
• Carolina Pride, Inc. v. McMaster, 2009 WL
238206 (D.S.C.)
• South Carolina statute prohibiting businesses providing
sexually-oriented businesses from having any offpremises outdoor advertising within 1 mile of a public
highway.
• The court applied the four-part test from Central
Hudson Gas & Elec. Co. v. Public Service Comm. of N.Y.,
447 U.S. 557 (1980) in granting bookstore plaintiff a
preliminary injunction against enforcement of the
statute.
2
Four prong Central Hudson test
• At the outset, we must determine whether the
expression is protected by the First Amendment. For
commercial speech to come within that provision,
• [1] it at least must concern lawful activity and not be
misleading.
• [2] Next, we ask whether the asserted governmental
interest is substantial.
• [3] If both inquiries yield positive answers, we must
determine whether the regulation directly advances
the governmental interest asserted, and
• [4] whether it is not more extensive than is necessary
to serve that interest.
3
First and second prongs
• For the first prong ( which is really two prongs) the
court found that the advertising involved legal
products, and signs just the name location and nature
of the business and outline of the lion was not
misleading.
• For the second prong, the State argued several
substantial interests: 1) to mitigate the adverse
secondary effects of sexually oriented businesses, 2) to
mitigate harms to minors, 3)to prevent distraction of
drivers on the highway, and 4) to promote the
prosperity economic well-being and general welfare of
the state. -- The court accepted all as substantial
interests without much analysis.
4
Third and fourth prongs
• The statute failed on the third prong. The
court ruled that the state did not create an
adequate record to show that the statute in
question would effectively advance a
substantial governmental interest.
• The court also ruled that the statute did not
meet the fourth prong and that it was not
narrowly tailored, largely because it was an
outright ban.
5
Abilene Retail v. Six, 2009 WL 1850597
(D.Kan.)
• This case was almost a carbon copy of
Carolina Pride.
• Bookstore plaintiff
• 1000 foot from highway sign rule
• The statute here, however, also put limits on
on-premises signs within the thousand foot
range.
6
first two prongs
•
•
•
First prong, despite argument by state court found in signs in question were not
misleading and involved legal transactions.
Second prong, “The State clearly sets forth its asserted interests in the text of the
statute: (1) to mitigate the adverse secondary effects of sexually-oriented
businesses; (2) to improve traffic safety; (3) to limit harm to minors; and (4) to
reduce prostitution, crime, juvenile delinquency, deterioration in property values
and lethargy in neighborhood improvement efforts. In its response brief, the State
asserts that it has a substantial interest in reducing illegal activity. The Court
assumes for purposes of its analysis that the State can establish that these are
substantial interests.” citing Abilene Retail # 30, Inc. v. Bd. of Commr's of Dickinson
Cty., Kan., 492 F.3d 1164, 1170-71 (10th Cir.2007) (finding adverse secondary
effects of sexually-oriented business is a constitutionally valid motivation for a
zoning ordinance); Passions Video, Inc. v. Nixon, 458 F.3d 837, 843 (8th Cir.2006)
(finding Missouri's stated interest in minimizing the secondary effects of sexuallyoriented businesses substantial)
[Note – this case was very similar to Abilene Retail and Carolina Pride, except in
Passions Video, the government unsuccessfully argued that it could ameliorate
negative effects of adult businesses by limiting the customers for those
businesses.]
7
Prongs three and four
• Prong three. Although the State did produce
some evidence, court ruled that: “the Court
finds, based on the bare record before it, that
plaintiff has a substantial likelihood of success
on the merits with regard to the third prong of
Central Hudson.”
• Prong four. Both the total off premises ban
and the on-premises sign limitations were not
narrowly tailored.
8
Reliance on Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525 (2001)
• These cases, Carolina Pride, Abilene Retail, Passions Video
have several things in common.
• Central Hudson analysis
• Complete bans within a significant geographic area
• Court acceptance of the government’s claims under the
second prong
• Governmental failure to provide an adequate record to
satisfy the third and fourth prongs.
• And a reliance on Lorillard for protection of commercial
speech.
• A rereading of Lorillard may make one somewhat less
sanguine.
9
Brief review of Lorillard
• Massachusetts regulations restricting advertising of tobacco products.
• Most of the opinion concerned how state law regarding advertising of
cigarettes is federally preempted.
• Another part upheld a requirement that tobacco products be kept behind
retail counters.
• The major 1St Amendment question involved regulations prohibiting
outdoor advertising of smokeless tobacco or cigars within 1,000 feet of
school or playground.
• The court ruled five to four that this regulation was unconstitutional.
• Justice O’Connor wrote the opinion joined by Chief Justice Rehnquist.
• Justice Thomas wrote a separate concurrence. Justice Kennedy also
concurred joined by Justice Scalia.
• Justices Stevens, Ginsburg, Breyer and Souter dissented from this part.
• Justices O’Connor and Rehnquist and all four dissenters applied Central
Hudson.
10
The Court split in Lorillard
•
•
•
•
•
•
The court only analyzed prongs three and four of the Central Hudson test, as it
took as given that tobacco products were legal and that the government had a
substantial interest in preventing underage tobacco use.
Similarly, O’Connor Rehnquist and the dissenters had no trouble finding ample
evidence that prong three was satisfied based on evidence linking advertising to
underage tobacco use.
Where they differed was on the fourth prong. O’Connor Rehnquist found the
thousand foot buffer zone in urban areas to be too restrictive and therefore
unconstitutional.
Stevens Ginsburg Breyer and Souter wanted to remand the case for further
evidence concerning narrow tailoring.
Kennedy and Scalia voted to invalidate based on the fourth prong and expressed
doubts concerning the third. They also expressed some doubt about the
applicability of Central Hudson to content-based advertising restrictions.
Thomas wanted to invalidate Central Hudson and to apply strict scrutiny.
11
Lorillard redux?
The Family Smoking Prevention and
Tobacco Control Act, H.R. 1256
• Signed into law June 2009
• Gave Congressional support to 61 Fed. Reg 44398,
August 28, 1996 –FDA rules re: advertising
• In FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120 (2000) Supreme Court ruled FDA didn’t have
authority to regulate tobacco without Congressional
authorization.
• (Pres. Bush vetoed similar attempt in 2002)
• FDA rules created restrictions on tobacco advertising
12
•
21 CFR § 897.30
§897.30 Scope of permissible forms of
labeling and advertising
(a)(1) A manufacturer, distributor, or retailer may, in accordance with this subpart D, disseminate or
cause to be disseminated advertising or labeling which bears a cigarette or smokeless tobacco
brand name (alone or in conjunction with any other word) or any other indicia of tobacco product
identification, in newspapers; in magazines; in periodicals or other publications (whether periodic
or limited distribution); on billboards, posters, and placards; in nonpoint-of-sale promotional
material (including direct mail); in point-of-sale promotional material; and in audio or video
formats delivered at a point-of-sale.
•
•
(2) A manufacturer, distributor, or retailer intending to disseminate, or to cause to be disseminated,
advertising or labeling for cigarettes or smokeless tobacco in a medium that is not listed in
paragraph (a)(1) of this section, shall notify the agency 30 days prior to the use of such medium.
The notice shall describe the medium and discuss the extent to which the advertising or labeling
may be seen by persons younger than 18 years of age. The manufacturer, distributor, or retailer
shall send this notice to the Division of Drug Marketing, Advertising, and Communications, 5600
Fishers Lane (HFD-40), rm. 17B-20, Rockville, MD 20857.
(b) No outdoor advertising for cigarettes or smokeless tobacco, including billboards, posters, or
placards, may be placed within 1,000 feet of the perimeter of any public playground or
playground area in a public park (e.g., a public park with equipment such as swings and seesaws,
baseball diamonds, or basketball courts), elementary school, or secondary school.
13
•
21 CFR §897.32 Format and content
requirements for labeling and
advertising.
(a) Except as provided in paragraph (b) of this section, each manufacturer,
distributor, and retailer advertising or causing to be advertised, disseminating or
causing to be disseminated, any labeling or advertising for cigarettes or smokeless
tobacco shall use only black text on a white background. This section does not
apply to advertising:
(1) In any facility where vending machines and self- service displays are permitted
under this part, provided that the advertising is not visible from outside the facility
and that it is affixed to a wall or fixture in the facility; or
(2) Appearing in any publication (whether periodic or limited distribution) that the
manufacturer, distributor, or retailer demonstrates is an adult publication. For the
purposes of this section, an adult publication is a newspaper, magazine, periodical,
or other publication:
(i) Whose readers younger than 18 years of age constitute 15 percent or less of
the total readership as measured by competent and reliable survey evidence; and
(ii) That is read by fewer than 2 million persons younger than 18 years of age as
measured by competent and reliable survey evidence.
14
(b) Labeling and advertising in an
audio or video format shall be limited
as
follows:
•
(1) Audio format shall be limited to words only with no music or sound
effects.
(2) Video formats shall be limited to static black text only on a white
background. Any audio with nethe video shall be limited to words only
with no music or sound effects.
(c) Each manufacturer, distributor, and retailer advertising or causing to be
advertised, disseminating or causing to be disseminated, advertising
permitted under this subpart D, shall include, as provided in section 502 of
the act, the product's established name and a statement of its intended
use as follows: "Cigarettes--A Nicotine-Delivery Device for Persons 18 or
Older", "Cigarette Tobacco--A Nicotine-Delivery Device for Persons 18 or
Older", or "Loose Leaf Chewing Tobacco", "Plug Chewing Tobacco", "Twist
Chewing Tobacco", "Moist Snuff" or "Dry Snuff", whichever is appropriate
for the product, followed by the words "A Nicotine-Delivery Device for
Persons 18 or Older".
15
•
.
Sale and distribution of nontobacco items and services, -gifts, and sponsorship of events.
(a) No manufacturer and no distributor of imported cigarettes or smokeless tobacco may market,
license, distribute, sell, or cause to be marketed, licensed, distributed, or sold any item (other than
cigarettes or smokeless tobacco) or service, which bears the brand name (alone or in conjunction
with any other word), logo, symbol, motto, selling message, recognizable color or pattern of
colors, or any other indicia of product identification identical or similar to, or identifiable with,
those used for any brand of cigarettes or smokeless tobacco.
•
(b) No manufacturer, distributor, or retailer may offer or cause to be offered any gift or item (other
then cigarettes or smokeless tobacco) to any person purchasing cigarettes or smokeless tobacco in
consideration of the purchase thereof, or to any person in consideration of furnishing of furnishing
evidence, such as credits proofs-of-purchase, or coupons, of such a purchase.
•
(c) No manufacturer, distributor, or retailer may sponsor or cause to be sponsored any athletic,
musical, artistic, or other social or cultural event, or any entry or team in any event, in the brand
name (alone or in conjunction with any other word), logo, symbol, motto, selling message,
recognizable color or pattern of colors, or any other indicia of product identification identical or
similar to, or identifiable with, those used for any brand of cigarettes or smokeless tobacco.
Nothing in this paragraph prevents a manufacturer, distributor, or retailer from sponsoring or
causing to be sponsored any athletic, musical, artistic, or other social or cultural event, or team or
entry, in the name of the corporation which manufactures the tobacco product, provided that both
the corporate name and the corporation were registered and in use in the United States prior to
January 1, 1995, and that the corporate name does not include any brand name (alone or in
conjunction with any other word), logo, symbol, motto, selling message, recognizable color or
pattern of colors, or any other indicia of product identification identical or similar to, or identifiable
with, those used for any brand of cigarettes or smokeless tobacco.
16
•
SEC. 2. FINDINGS.
•
•
•
The Congress finds the following:
•
(6) Because past efforts to restrict advertising and marketing of tobacco products have failed adequately to curb
tobacco use by adolescents, comprehensive restrictions on the sale, promotion, and distribution of such products
are needed.
•
•
•
•
•
•
(5) Tobacco advertising and marketing contribute significantly to the use of nicotine-containing tobacco products
by adolescents.
(12) It is in the public interest for Congress to enact legislation that provides the Food and Drug Administration
with the authority to regulate tobacco products and the advertising and promotion of such products. The benefits
to the American people from enacting such legislation would be significant in human and economic terms.
(15) Advertising, marketing, and promotion of tobacco products have been especially directed to attract young
persons to use tobacco products, and these efforts have resulted in increased use of such products by youth. Past
efforts to oversee these activities have not been successful in adequately preventing such increased use.
(17) Tobacco product advertising often misleadingly portrays the use of tobacco as socially acceptable and
healthful to minors.
17
•
•
(18) Tobacco product advertising is regularly seen by persons under the age of 18, and persons under the age of
18 are regularly exposed to tobacco product promotional efforts.
•
(19) Through advertisements during and sponsorship of sporting events, tobacco has become strongly associated
with sports and has become portrayed as an integral part of sports and the healthy lifestyle associated with
rigorous sporting activity.
•
(20) Children are exposed to substantial and unavoidable tobacco advertising that leads to favorable beliefs about
tobacco use, plays a role in leading young people to overestimate the prevalence of tobacco use, and increases
the number of young people who begin to use tobacco.
•
(21) The use of tobacco products in motion pictures and other mass media glamorizes its use for young people
and encourages them to use tobacco products.
•
(22) Tobacco advertising expands the size of the tobacco market by increasing consumption of tobacco products
including tobacco use by young people.
•
(23) Children are more influenced by tobacco marketing than adults: more than 80 percent of youth smoke three
heavily marketed brands, while only 54 percent of adults, 26 and older, smoke these same brands.
•
•
•
(25) Comprehensive advertising restrictions will have a positive effect on the smoking rates of young people.
(26) Restrictions on advertising are necessary to prevent unrestricted tobacco advertising from undermining
legislation prohibiting access to young people and providing for education about tobacco use.
18
•
(27) International experience shows that advertising regulations that are stringent and comprehensive have a
greater impact on overall tobacco use and young people's use than weaker or less comprehensive ones.
•
(28) Text only requirements, although not as stringent as a ban, will help reduce underage use of tobacco
products while preserving the informational function of advertising.
.
(30) The final regulations promulgated by the Secretary of Health and Human Services in the August 28, 1996,
issue of the Federal Register (61 Fed. Reg. 44615-44618) for inclusion as part 897 of title 21, Code of Federal
Regulations are consistent with the first amendment to the United States Constitution and with the standards set
forth in the amendments made by this subtitle for the regulation of tobacco products by the Food and Drug
Administration, and the restriction on the sale and distribution of, including access to and the advertising and
promotion of, tobacco products contained in such regulations are substantially related to accomplishing the public
health goals of this division.
•
•
•
(31) The regulations . . . will directly and materially advance the Federal Government's substantial interest in
reducing the number of children and adolescents who use cigarettes and smokeless tobacco and in preventing the
life-threatening health consequences associated with tobacco use. An overwhelming majority of Americans who
use tobacco products begin using such products while they are minors and become addicted to the nicotine in
those products before reaching the age of 18. Tobacco advertising and promotion play a crucial role in the
decision of these minors to begin using tobacco products. Less restrictive and less comprehensive approaches
have not and will not be effective in reducing the problems addressed by such regulations. The reasonable
restrictions on the advertising and promotion of tobacco products contained in such regulations will lead to a
significant decrease in the number of minors using and becoming addicted to those products.
•
(32) The regulations . . . impose no more extensive restrictions on communication by tobacco manufacturers and
sellers than are necessary to reduce the number of children and adolescents who use cigarettes and smokeless
tobacco and to prevent the life-threatening health consequences associated with tobacco use. Such regulations
are narrowly tailored to restrict those advertising and promotional practices which are most likely to be seen or
heard by youth and most likely to entice them into tobacco use, while affording tobacco manufacturers and sellers
ample opportunity to convey information about their products to adult consumers.
•
•
(35) Tobacco products have been used to facilitate and finance criminal activities both domestically and
internationally. Illicit trade of tobacco products has been linked to organized crime and terrorist groups.
19
SEC. 906. GENERAL PROVISIONS
» (d) RESTRICTIONS.--
• "(1) IN GENERAL.--The Secretary may by regulation require restrictions on
the sale and distribution of a tobacco product, including restrictions on
the access to, and the advertising and promotion of, the tobacco
product, if the Secretary determines that such regulation would be
appropriate for the protection of the public health. The Secretary may by
regulation impose restrictions on the advertising and promotion of a
tobacco product consistent with and to full extent permitted by the first
amendment to the Constitution. The finding as to whether such regulation
would be appropriate for the protection of the public health shall be
determined with respect to the risks and benefits to the population as a
whole, including users and nonusers of the tobacco product, and taking
into account-• "(A) the increased or decreased likelihood that existing users of tobacco
products will stop using such products; and
• "(B) the increased or decreased likelihood that those who do not use
tobacco products will start using such products.
20
SEC. 916. PRESERVATION OF STATE
AND LOCAL AUTHORITY
• "(a) IN GENERAL.-• "(1) PRESERVATION.--Except as provided in paragraph (2)(A),
nothing in this chapter, or rules promulgated under this chapter,
shall be construed to limit the authority of a Federal agency
(including the Armed Forces), a State or political subdivision of a
State, or the government of an Indian tribe to enact, adopt,
promulgate, and enforce any law, rule, regulation, or other
measure with respect to tobacco products that is in addition to, or
more stringent than, requirements established under this chapter,
including a law, rule, regulation, or other measure relating to or
prohibiting the sale, distribution, possession, exposure to, access to,
advertising and promotion of, or use of tobacco products by
individuals of any age, information reporting to the State, or
measures relating to fire safety standards for tobacco products.
21
SEC. 203. STATE REGULATION OF
CIGARETTE ADVERTISING AND
PROMOTION.
• Section 5 of the Federal Cigarette Labeling and
Advertising Act (15 U.S.C. 1334) is amended by adding
at the end the following:
• "(c) EXCEPTION.--Notwithstanding subsection (b), a
State or locality may enact statutes and promulgate
regulations, based on smoking and health, that take
effect after the effective date of the Family Smoking
Prevention and Tobacco Control Act, imposing specific
bans or restrictions on the time, place, and manner,
but not content, of the advertising or promotion of any
cigarettes.
22
SEC. 102. FINAL RULE
• (a) CIGARETTES AND SMOKELESS TOBACCO.—
• (1) IN GENERAL.--On the first day of publication of the Federal
Register that is 180 days or more after the date of enactment of this
Act, the Secretary of Health and Human Services shall publish in the
Federal Register a final rule regarding cigarettes and smokeless
tobacco, which-• . . .
(E) include such modifications to section 897.30(b), if any, that the
Secretary determines are appropriate in light of governing First
Amendment case law, including the decision of the Supreme Court
of the United States in Lorillard Tobacco Co. v. Reilly (533 U.S. 525
(2001));
23
How would “Lorillard II” fare in the
new Supreme Court?
• O’Connor, Rehnquist and Souter are or will be
gone.
• Stevens and Ginsburg and Breyer might well
uphold most provisions of a new law based on a
more substantial record.
• Thomas would likely maintain his position that
commercial speech should be treated like
noncommercial speech.
• Roberts and Alito are obviously a mystery as are,
to a lesser extent, Kennedy and Scalia.
24
Implications for adult business
advertising
•
Assuming Central Hudson remains the standard a Supreme Court decision substantially upholding advertising
restrictions on tobacco could have serious consequences.
•
For adult businesses, Central Hudson’s second prong has been pretty much conceded to the government.
•
This includes secondary effects, protection of children and other interests that have been cited in previous cases.
•
If content restrictions such as black-and-white tombstone ads become acceptable we can expect state and local
governments to push the restrictions up to but not quite at total bans.
•
1996 FDA Rules, now ratified by Congress do not address the Internet.
•
We might also find internet promotion restricted. While the Supreme Court in cases such as Reno v. ACLU, 521 U.S.
844 (2007) and Ashcroft v. ACLU, 542 U.S. 656 (2004) rejected Internet limits based on appropriateness for
children, analysis was under strict scrutiny.
•
Advertising restrictions would still come under the intermediate scrutiny of Central Hudson. Thus the analysis
would be more like Renton and O’Brien – and we know how well that works for us.
•
Smart prosecutors and legislators may start creating pretextual records and evidence to avoid having their cases
are out based on lack of an adequate record.
25
The Scalia Conundrum
• It is not inconceivable and perhaps even likely in that
Justice Scalia would vote to invalidate restrictions on
tobacco advertising while approving similar ones for
adult businesses.
• While Scalia used tobacco products as legal he views
adult content as unprotected and illegal under the
pandering theory from Ginsburg v. U.S., 383 U.S. 463
(1966).
• Thus, the adult material is unprotected because of the
advertising – and the advertising is unprotected under
the first prong of Central Hudson, because the
material is illegal due to its advertising.
26
Nike v. Kasky, 539 U.S. 654 (2003)
• • Beginning in 1996, Nike was besieged with a series of allegations that it
was mistreating and underpaying workers at foreign facilities. See App.
to Pet. for Cert. 3a. Nike responded to these charges in numerous ways,
such as by sending out press releases, writing letters to the editors of
various newspapers around the country, and mailing letters to university
presidents and athletic directors. See id., at 3a-4a. In addition, in 1997,
Nike commissioned a report by former Ambassador to the United Nations
Andrew Young on the labor conditions at Nike production facilities. See id.,
at 67a. After visiting 12 factories, “Young issued a report that commented
favorably on working conditions in the factories and found no evidence
of widespread abuse or mistreatment of workers.” reversed and
remanded for further proceedings. . . . The California Supreme Court
held that “[b]ecause the messages in question were directed by a
commercial speaker to a commercial audience, and because they made
representations of fact about the speaker's own business operations for
the purpose of promoting sales of its products, ... [the] messages are
commercial speech.” 27 Cal.4th 939, 946, 119 Cal.Rptr.2d 296, 45 P.3d
243, 247 (2002).
27