PAST ARTICLES AND EDITORIAL BOARDS Volume VI, No. 1 - 1997
LOOKING PAST A SMOKE SCREEN: A FIRST AMENDMENT ANALYSIS
OF THE FOOD AND DRUG ADMINISTRATION'S RULE
RESTRICTING TOBACCO ADVERTISING
Gerald W. Griffin
6 J.L. & Pol'y 363 (1997)
In 1996 the FDA promulgated a rule regulating tobacco products. This rule has been attacked primarily on the grounds that Congress has not conferred the FDA with jurisdiction over tobacco products and that it violates the First Amendment rights of tobacco manufacturers, advertisers and retailers to advertise and promote their wares. The purpose of the FDA restrictions on advertising is to counter the purported causal link between advertising and a child's decision to start smoking, but whether such a causal link exists is questionable. Without support for this contention, FDA is without a constitutional right to restrict this commercial speech in the form of tobacco advertising.

In 1980, the Supreme Court, in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, set forth a four- prong test to be applied when determining whether a governmental regulation violates the First Amendment's Protection of commercial speech. The FDA's regulation fails to meet the rigors of this test. The FDA fails to satisfy the first prong of the test because the commercial speech it seeks to ban is lawful and not misleading. The FDA does however, meet the benchmark of the second prong of the test: its asserted interest in banning the speech is to protect minors from physical harm in the form of inducement to smoke. The third prong of the test, that the regulation directly advance the asserted interest, is not met. The burden falls on FDA to prove the means-end fit due to the breadth of the ban. Finally, the FDA also fails to satisfy the fourth prong of the test because less restrictive means exist to further the governmental interest.

If the FDA seeks to regulate minors' smoking, it may do so, only by other means.