Can the government prohibit the advertising of a product that is legal but dangerous?
That question will be at the heart of a constitutional battle over President Clinton’s move to ban tobacco-product ads in magazines and on billboards, and even on T-shirts and hats.
The White House says its new restrictions will be targeted at ads and promotions intended to reach teen-agers. But a coalition of magazine publishers, advertisers and tobacco firms say they will challenge the restrictions as a violation of the free-speech guarantee in the First Amendment.
Some legal experts who closely follow the Supreme Court predicted Sunday that the Clinton Administration’s proposed restrictions will not survive.
The restrictions “are constitutionally dicey at best,” said Bruce Fein, a constitutional expert and former Federal Communications Commission attorney. “The court has made clear you can’t limit adults to what is acceptable for children.”
A lawyer representing the advertisers contesting the Administration’s proposal predicted that it will be struck down because it goes too far.
“These restrictions are anything but narrowly tailored,” attorney John Fithian said Sunday on ABC-TV’s “This Week With David Brinkley.” He said Clinton and Food and Drug Administration Commissioner David A. Kessler want to “eliminate all tobacco advertisements directed to everyone.”
Until 20 years ago, it was understood that advertising was not protected by the First Amendment. But in a series of rulings involving ads for contraceptives, abortion services and pharmaceutical prices, the high court extended free-speech protection to advertising and “commercial speech.”
“In applying the First Amendment to this area, we have rejected the highly paternalistic view that government has complete power to suppress or regulate commercial speech,” Justice Lewis F. Powell wrote in a 1980 ruling that struck down a New York regulation barring its electrical companies from promoting the use of electricity through ads and flyers.
But the free-speech protection is by no means absolute. The justices have said repeatedly that the advertiser’s rights must be balanced against the government’s interest in protecting its citizens, especially from misleading claims.
In its 1980 ruling involving utilities, the court said the government “must assert a substantial interest” in limiting advertising and its restrictions must be “narrowly drawn.”
Kessler, who is both a doctor and a lawyer, defended the proposed restrictions on cigarette ads Sunday and predicted that they will be upheld.
“Three thousand children a day begin smoking and nearly a thousand will go on to die,” Kessler said on the ABC program. “If that’s not a substantial public interest, I don’t know of any.”
The FDA chief said the tobacco industry spends $6.2 billion on marketing and advertising to send the message that smoking is “glamorous” and “cool.”
Media groups say tobacco-product advertising is a substantial business, but they cite a much lower figure of $300 million a year spent on cigarette-related ads. Tobacco industry officials say their ads are intended to draw smokers to their brand of cigarettes, not to persuade nonsmokers to take up the habit.
Unswayed by that claim, Clinton and Kessler last week proposed several restrictions on tobacco-related advertising. For example, magazines that have a “youth readership” of 15% or more will not be permitted to use color or photos in tobacco ads. Only black-and-white text will be allowed.
The President also said “images such as Joe Camel will not appear on billboards . . . that reach substantial numbers of children and teens.” Tobacco companies will be barred from sponsoring sporting events and putting their names or logos on T-shirts, hats or gym bags.
The Supreme Court almost certainly will have to resolve the issue.
In 1971, cigarette ads were banned from radio and television by the FCC. Without issuing an opinion, the high court upheld that order the next year.
But magazines and T-shirts cannot be so easily regulated by the federal government. Moreover, the justices have shown a growing unwillingness to uphold even traditional restrictions on advertising.
For example, the states have broad powers to regulate the sale of alcohol, thanks to the 21st Amendment repealing Prohibition. Many states, including Rhode Island, use this power to forbid the advertising of liquor prices.
But earlier this year, a group of advertisers and liquor distributors challenged this restriction as violating their free-speech rights, and the Supreme Court voted to hear their appeal. The case will be heard when the court resumes work in the fall.