Outlawing Tobacco Advertising Is Not a Proper Remedy

The American Medical Assn. wants Congress to enact a total ban on tobacco advertising--in magazines, on billboards, even in skywriting. The AMA is afraid that I or my children will be seduced by the glamour of tobacco ads and start puffing away. I disagree with both the premise and the remedy.

Take a look at the ads: Smoke one brand and a beautiful woman will stroke your hair. Smoke another and prove “you’ve come a long way, baby.” These patronizing ads may encourage a few to buy a pack, but they hardly have such a mesmerizing effect that, once spotted, there is nowhere to go but the cigarette machine. Millions of Americans see cigarette ads each day and don’t even think of taking up smoking.

Most tobacco advertisements certainly promote the idea that smoking is a good thing: It makes you desirable, contemporary, charming or attractive. These are sometimes called “life-style” ads, and are severely criticized by public-health advocates. But there is no real difference between tobacco ads and most other product advertising. What company, after all, depicts a life style suggesting that you will become unappealing, miserable and unattractive from using its product?

Some tobacco advertisements actually tout factual information or even political views. Some companies promote the low percentage of tar or nicotine in their products. One major company buys space to rebut evidence linking smoking to disease and to claim that secondhand smoke isn’t a menace to anybody. Frankly, they haven’t persuaded me, but they have a right to try.

This is a society in which most of us don’t like something. We are offended, outraged or alarmed by a plethora of ideas and images. Many societies take a plebiscite about what bothers people and eliminate or censor that which offends. That is not an absurd way to do business, it is just not the way we do it in the United States. Rather than have the government suppress what we don’t like, we challenge and rebut it.

The debate over smoking and our society has been vigorous for many years. Actress Brooke Shields stuck cigarettes in her ears to demonstrate that cigarettes make people ugly. Groups have distributed stickers that say things like “Kissing a smoker is like licking an ashtray.”

I hope that there continues to be vigorous, robust discussion about smoking and its effects on our society. It is simply unfair, however, to preclude much of the speech, including the advertising of the tobacco industry, from the arena of discourse.

Notwithstanding a recent decision turning on the unique status of casino advertising in Puerto Rico, the U.S. Supreme Court generally doesn’t approve of information rationing as a way to stop people from learning of perfectly legal activity, whether it is obtaining birth control or buying real estate. The court has struck down statutes banning advertising for contraceptives (statutes enacted in hopes of reducing promiscuity) and “For Sale” signs (passed to forestall panic selling motivated by racial integration).

The court has not said that commercial speech always is entitled to precisely the same protection as a political diatribe in the park or an editorial in the Sunday newspaper. However, in a seminal case, Central Hudson Gas vs. Public Service Commission, it said that truthful advertising could be regulated only if the regulation would accomplish a goal that the legislature had a right to achieve and if less drastic alternatives were not available. A ban on cigarette advertising fails on both scores.

Under this standard, it is not enough to prove that smoking is harmful; you have to demonstrate that eliminating smoking advertisements will affect consumption, so as to improve public health. Tobacco advertising already has been banned in many countries, but there is little evidence that actual cigarette consumption has declined.

The ACLU has never opposed warning labels on products determined to be dangerous by lawfully empowered authorities. It did not, therefore, object to the rotating warning signs now printed in cigarette ads that explain that responsible people like the U.S. surgeon general have linked cigarettes to cancer, heart disease, pregnancy complications and other disorders.

Consistent with the constitutional protection accorded commercial speech, even stronger, bigger or more complete warnings might be required. This could arguably serve a First Amendment interest in disclosure of all sides to a controversy. It surely would be less drastic than a flat ban.

I have many friends in the consumer movement. They don’t approve of tobacco ads or alcohol ads. They also don’t like car ads (people are seen driving too fast), ads for eggs (they are too cavalierly promoted as healthy when they have gobs of cholesterol) and detergent ads (their stereotypes of women are unhealthy).

I wouldn’t dispute the stupidity or carelessness of any of these commercials. I just can’t countenance a remedy that includes having the government mandate them out of existence.