The FDA's Tobacco Restrictions
The Constitutionality of the FDA's Tobacco Restrictions
as a First Amendment Issue
by
Yung Kyun Choi
Submitted to Law Division for Presentation at the AEJMC Annual Convention in
Chicago, Illinois, July 30-August 2, 1997
Contact: Yung Kyun Choi
Department of Advertising
Michigan State University
East Lansing, MI 48824
Telephone: 517-353-7068
Fax: 517-432-2589
Email: [log in to unmask]
The Constitutionality of the FDA's Tobacco Restrictions
as a First Amendment Issue
Abstract
This article analyzes the constitutionality of the FDA's tobacco rule by
applying Central Hudson test. It discusses the history of tobacco advertising
regulation and evolution of commercial speech protection. The availability of
alternatives is found to be a crucial indicator of the fit between the FDA's
ends and means. Regulation incorporating all four marketing factors is suggested
as an alternative approach to achieve the goal of the FDA rule while upholding
First Amendment principles.
The Constitutionality of the FDA's Tobacco Restrictions
as a First Amendment Issue
Abstract
This article analyzes the constitutionality of the FDA's tobacco
restrictions intended to prevent tobacco products from alluring young people by
applying the Central Hudson test. It discusses the history of tobacco
advertising regulation and investigate the evolution of commercial speech
protection focusing on major commercial speech cases. The availability of
alternatives other than speech restriction is found to be a crucial indicator of
the fit between the FDA's means and ends. This finding is reflected in the
Central Hudson four prong test. The alternatives are discussed with regard to
four marketing factors: product, price, distribution, and promotion. The
researcher concludes that the FDA's attempt to prevent underage smoking has
placed too much emphasis on the promotional aspects while other alternatives are
available. Regulation incorporating all four marketing factors is suggested as
an alternative approach to achieve the goal of the FDA rule more effectively
while upholding First Amendment principles.
In August 23, 1996, President Clinton announced the nation's first
comprehensive program to prevent children and adolescents from smoking
cigarettes or using smokeless tobacco and beginning a lifetime of nicotine
addiction. The announcement was based on the proposal for tobacco restriction
which was prepared by the Food and Drug Administration (FDA) a year ago.
The FDA rule aims to reduce children's easy access to tobacco products by:
Requiring age verification by photo ID for anyone under the age of 27 purchasing
tobacco products; banning vending machines and self-service displays except in
"adult" facilities where children are not allowed, such as certain nightclubs
totally inaccessible to anyone under 18; and banning free samples, the sale of
single cigarettes, and packages containing fewer than 20 cigarettes.[1]
The FDA rule limits the appeal of tobacco products to children by:
Prohibiting billboards within 1,000 feet of schools and playgrounds. Other
advertising is restricted to black-and-white text only; this includes all
billboards, signs inside and outside of buses, and all advertising in stores.
Advertising inside "adult only" facilities like nightclubs can have color and
imagery; Permitting black-and-white text-only advertising in publications with
significant youth readership (more than 15 percent or more than 2 million
readers under 18) and there are no restrictions on print advertising below these
thresholds; prohibiting sales or giveaways of products like caps or gym bags
that carry cigarette or smokeless tobacco product brand names or logos;
prohibiting brand-name sponsorship of sporting or entertainment events
(including teams and entries), but permitting it in the corporate name.[2]
Advertising and media groups criticize the broad scope of the rules; the
FDA's assumption that advertising causes children to start smoking and that
reducing advertising would affect underage smoking; and the agency's willingness
to unveil the restrictions despite a recent U.S. Supreme Court case, 44
Liquormart, Inc. v. Rhode Island,[3] that appeared to give broad First Amendment
protection to advertising. They are also concerned over the enormous impact of
the rules on their business such as loss of jobs, loss of business opportunity,
and loss of creative freedom.[4]
While the controversy over the rule continues, the purpose of this article
is to examine the constitutionality of the FDA tobacco rule as a First Amendment
issue. The study begins with a brief overview of the regulatory history of
tobacco advertising. Next, the evolution of commercial speech protection will be
investigated in terms of major commercial speech cases, including recent court
decisions in 44 Liquormart, Inc. v. Rhode Island, and Rubin v. Coors Brewing
Co.[5] The availability of alternatives is found as an important criterion in
deciding whether the fit between the government's interest and imposed measures
is reasonable. The finding is reflected in analyzing the FDA rule by Central
Hudson's four prong test. Later, the alternatives are discussed, in detail, with
regard to four marketing factors. Finally, the paper concludes that the FDA rule
unreasonably sacrifices First Amendment principles by trying to reduce underage
smoking mostly through advertising restrictions while other alternatives are
available, which may be more effective and less intrusive to the freedom of
speech.
History of the tobacco advertising regulation
Since the Surgeon General's report in 1964,[6] the government tried to protect
the public's physical well-being by regulating information about the product
rather than the product itself. For example, the government has never imposed
specification standards regarding the design of safe cigarettes such as filters
or particular cigarette designs. The emphasis of the cigarette risk-regulation
efforts instead has been on decreasing smoking activity by altering behavior and
providing information about the smoking risk.[7]
On January 11, 1964, the advisory committee on Smoking and Health released the
Surgeon General's Report, which contains two major conclusions:
Cigarette smoking is a health hazard of sufficient importance in the United
States
to warrant remedial action.
Cigarette smoking is causally related to lung cancer in men; the magnitude of
the
effect of cigarette smoking far outweighs other factors. The data
for women, although less extensive, point in the same direction.[8]
In the summer of the same year, the FTC issued a ruling requiring all cigarette
advertising and packages to display a health warning notice. When Congress
completed hearings a year later, it designed and enacted the Cigarette Labeling
and Advertising Act. The act required a health warning to be printed on
cigarette packages and included a provision which for three years prevented any
federal, state, or local authority from requiring that cigarette advertising
include a statement relating to smoking and health.[9]
In 1967, a combined effort on the part of New York attorney John F. Banzhaf
III and the FCC resulted in a regulation of unprecedented scope in the realm of
government intervention in the activities of this industry, the Fairness
Doctrine. The Doctrine reflected the duty of radio and television licensees to
"operate in the public interest and to afford reasonable opportunity for the
discussion of conflicting views on issues of public importance."[10] The U.S.
Supreme Court held that the Cigarette Labeling Act of 1965 does not constitute
congressional preemption of the field of regulation addressed to health problems
posed by cigarette smoking and does not deny the FCC the authority to require
radio and television stations which carry cigarette advertising to devote a
significant amount of broadcast time to presenting the case against cigarette
smoking.[11] The Court also held that the Act did not violate the First
Amendment because it does not ban any speech and even if some valued speech is
inhibited by the ruling, the First Amendment gain is greater than the loss.[12]
In 1970, President Nixon signed the Public Health Cigarette Smoking Act of
1969. The act prohibited the advertising of cigarettes on broadcast media after
January 1, 1971.[13] Though the ban was hailed by the antismoking forces as a
major victory, there was one serious drawback. Since the broadcasters could no
longer advertise cigarettes, they were no longer required to comply with the
Fairness Doctrine. Consequently, the influence of the controversy on the public
was dampened, and cigarette consumption rose significantly as the frequency of
antismoking spots was reduced.
The evolution of First Amendment protection for commercial speech
Previous status of commercial speech
In Valentine v. Chrestensen,[14] the U.S. Supreme Court first declared that the
Constitution placed no restraints upon government regulation of commercial
advertising. The rule that commercial speech had no first amendment protection
began to erode when the Court invalidated a Virginia statute that criminalized
the sale or circulation of any publication that encouraged procurement of an
abortion.[15] The Court stated that the government cannot restrict advertising
where the commercial activity itself is legal,[16] and held that it was error to
assume that commercial speech was entitled to no First Amendment protection or
that it was without value in the marketplace of ideas.[17]
Expansion of the commercial speech protection
The holding in Bigelow was expanded in Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc.[18] Here, the Court held that the State's
blanket ban on advertising the price of prescription drugs violated the First
Amendment.[19] Virginia Pharmacy Bd. reflected the conclusion that the same
interest that supports regulation of potentially misleading advertising, namely
the public's interest in receiving accurate commercial information, also
supports an interpretation of the First Amendment that provides constitutional
protection for the dissemination of accurate and nonmisleading commercial
messages. The Court explained: "Advertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemination of information as to who is
producing and selling what product, for what reason, and at what price....It is
a matter of public interest that those decisions, in the aggregate, be
intelligent and well informed. To this end, the free flow of commercial
information is indispensable."[20]
Central Hudson Test
Five years after Bigelow, a four-part analysis for commercial speech cases was
crafted in Central Hudson Gas & Electric Corp. v. Public Service Commission.[21]
The New York Public Service Commission had ordered the state electric utilities
not to promote the use of electricity because of a concern that demand would
exceed supply. In 1977, the Commission continued its ban but allowed
institutional and informational advertising. The Court concluded that the
Commission had failed to show that a more limited speech regulation would be
ineffective and therefore overturned the advertising ban.[22]
As articulated in this opinion, the Court in commercial speech cases would
proceed through the following steps:[23] (1) Determine whether the expression is
protected by the First Amendment, that is, does it involve lawful activity and
not mislead the audience? (2) Does the government have a substantial interest to
be achieved by restricting the speech? (3) Does the regulation directly advance
the government's interest? (4) Is the regulation more extensive than necessary
to achieve that interest?
Central Hudson amounted to a significant move in the direction of regulating
commercial speech, including truthful statements. The fourth step of Central
Hudson has become the focal point of debates in later cases. The Court's claim
that this four-part test had evolved from previous commercial speech cases was
not documented. Justice Blackmun, in a dissenting opinion, argued that this test
allowed the Commission to manipulate the economic choices of consumers by
curbing their access to information.[24]
The Central Hudson case represents a redirection in terms of deciding what
degree of protection to accord commercial statements. Central Hudson amplified
the Court's examination of commercial speech to include a matter or activity in
question. The Central Hudson Court therefore withdrew some of the protection
bestowed upon commercial speech during the previous five years.[25]
Weakening protection for the speech
The Court in 1986 greatly expanded governmental powers to control promotional
activity in Posadas de Puerto Rico Associates v. Tourism Company of Puerto
Rico.[26] The Puerto Rican legislature had legalized casino gambling but
prohibited the casinos from promoting their facilities to Puerto Rican citizens.
The Tourism Company, established by the legislature, administered the gambling
industry. That agency prohibited casino franchise holders from using the word
casino on any items accessible to people living in Puerto Rico. Posadas, a
casino holding company, was fined for violating these regulations and
subsequently challenged them.[27]
Reacting to Posadas' objection, the Puerto Rico Supreme Court rewrote the
regulations to try to resolve the first amendment problems. The revised
standards relaxed some of the regulatory agency's restrictions, but nonetheless
allowed use of the word casino only where the trade name of the hotel was used.
The standards also required previous approval of the Tourism Company for
advertising and publicity addressed to tourists within Puerto Rico.[28]
The U.S. Supreme Court declared that advertising of casino gambling could be
forestalled because casino gambling itself could be banned.[29] So where the
underlying commercial endeavor could be outlawed, the government can forbid
promotional activities regarding the endeavor. Thus, Posadas substantially
reduced First Amendment support for commercial communications by upholding
government authority for both previous restraint and censorship of truthful
advertising for a legal service.
Trend in the current cases
In Rubin v. Coors Brewing Co.,[30] the Court extented commercial speech
protection to labels on alcoholic beverages but left the doctrine as unclear as
before. The Court applied the four-prong test of Central Hudson Gas & Electric
Corp. v. Public Service Commission,[31] and held that a federal ban on
disclosure of the alcohol content of beer on labels was overbroad and failed to
advance directly the government's interest in preventing strength wars between
brewers. In a unanimous opinion, the Supreme Court affirmed. Justice Thomas,
writing for the Court, found that, although the Government's interest was
substantial, the federal ban failed the Central Hudson test because it lacked a
reasonable fit with the interest. Justice Thomas stated that the ban is more
extensive than necessary, since available alternatives to the labeling
banDincluding directly limiting the alcohol content of beers, prohibiting
marketing efforts emphasizing high alcohol strength, and limiting the ban to
malt liquors (the segment of the beer market that allegedly is threatened with a
strength war)Dwould prove less intrusive to the First Amendment's protections
for commercial speech.[32]
The Court reaffirmed the commercial speech protection in 44 Liquormart, Inc. v.
Rhode Island[33] in 1996. Liquor retailers brought a declaratory judgment action
challenging Rhode Island statutes prohibiting advertisement of liquor prices.
The United States District Court for the District of Rhode Island held the
statutes were invalid. The Court of Appeals for the First Circuit reversed. The
Supreme Court held that state's complete statutory ban on price advertising for
alcoholic beverages abridged speech in violation of the First Amendment.[34]
The reasoning in Posadas was not supported in 44 Liquormart. The Court
interpreted the Posadas' "greater-includes-the-lesser" argument as an
erroneously performed First Amendment analysis. In Posadas, the majority stated
that "the greater power to completely ban casino gambling necessarily includes
the lesser power to ban advertising of casino gambling."[35] Contrary to the
assumption made in Posadas, the Court in 44 Liquormart thought that banning
speech may sometimes prove far more intrusive than banning conduct. "_it may
prove more injurious to prevent people from teaching others how to fish than to
prevent fish from being sold. Similarly, a local ordinance banning bicycle
lessons may curtail freedom far more than one that prohibits bicycle riding
within city limits."[36] Under the reasoning, the Court rejected the assumption
that words are necessarily less vital to freedom than actions (or the logic that
the power to prohibit an activity is necessarily greater than the power to
suppress speech about it).[37] As a result, it was concluded that speech
restrictions cannot be treated as simply another means that the government may
use to achieve its ends because the First Amendment directs that government may
not suppress speech as easily as it may suppress conduct.
Under the assumption that the prohibition satisfies the test's first three
prongs,[38] the Court decided that Rhode Island's regulation failed the final
fourth prong because its ban is more extensive than necessary to serve its
stated interest. Rhode Island justified its ban on price advertising on the
grounds that the ban is intended to keep alcohol prices high as a way to keep
consumption low. In order for a speech restriction to pass the fourth prong
test, there must be a reasonable fit between the legislature's goal and method.
"The availability of less burdensome alternatives to reach the stated goal
signals that the fit between the legislature's ends and the means chosen to
accomplish those ends may be too imprecise to withstand First Amendment
scrutiny."[39] The fit in 44 Liquormart was found to be not reasonable, since
the State has other methods at its disposalDe.g., establishing minimum prices
and /or increasing sales taxes on alcoholic beveragesDthat would more directly
accomplish its stated goal without intruding on a seller's ability to provide
truthful, nonmisleading information to customers.[40]
In both cases, the availability of alternatives, which are less intrusive to
freedom of speech, was the most important factor in the final fourth prong test.
Analysis of the FDA Rule
Does the speech concern lawful activity and not mislead?
The determinant of whether the expression falls within First Amendment
protection is that the speech "must concern lawful activity and not be
misleading."[41]
While there is no doubt that cigarette smoking is a legal act, the appealing
imagery of tobacco advertisements has been the main target of anti-tobacco
groups.
Depicting vigorous people in pristine outdoor environments or cigarette brand
names in promotional association with sporting events, cigarette advertisements
typically feature veritable pictures of health.[42] The imaged themes of
cigarette advertisements (e.g., independence, adventure seeking, social
approval, success and sophistication, healthfulness) are known to appeal to
young people. The theme of independence, so captured by the Marlboro Man or
Virginia Slims, is particularly resonant with the characteristic need of
adolescents for autonomy and freedom from authority. Moreover, some of the
models in cigarette advertisements appear particularly youthful.[43]
Thus, the first argument on behalf of the tobacco advertising restriction is
that cigarette advertising is misleading by its own nature. However, deception
is usually thought of in terms of statements.[44] Advertising for an oven that
says it is self-cleaning, when in fact it is not, is a clear example of
deception. A cigarette company ad that says that smoking has not been proven
dangerous, if it is found to be commercial speech at all, can be banned as
deceptive. But what about an ad that says no more than "Alive with pleasure" or
"The experience you seek?" What about the Marlboro Man with the chaps and spurs
who is the strong silent type? He doesn't say anything at all, let alone
anything deceptive.[45] Furthermore, the existence of health warnings may not
make the advertising misleading.
In the case of alcoholic products, a flood of beer advertisements has
appeared appealing primarily to youth, and linking beer to sports and sexual
interests; and international comparisons show that alcoholism can occur just as
readily in predominantly beer- and wine-drinking as in spirit-drinking
countries.[46] However, courts have rejected as "highly paternalistic" the view
that alcohol ads are inherently misleading because they convey emotive,
noninformational images that tie alcohol consumption to the "good life."[47]
Therefore, because the product is legal and the advertising is arguably not
misleading, the first prong of the Central Hudson test has been met.
Does the government have a substantial interest to be achieved by restricting
the speech?
Under the Central Hudson formulation, the Court next asks "whether the asserted
governmental interest is substantial."[48] Articulation of the specific
government interest is important in order to justify the need for regulation,
and also plays a crucial role in determining whether the regulation directly
advances, and is narrowly tailored toward, an important end.
Then, why is the government so eager to prevent adolescents' smoking? A
fundamental concern over smoking youths has long been addressed through
research. For example, it is estimated that approximately one billion packs of
cigarettes worth more than $1 billion are consumed annually in the United States
by minors less than 18 years of age.[49] The younger the age of sampling and
uptake (i.e., regular smoking onset), the greater the likelihood of chronic use
as adults.[50] According to the World Health Organization, half (200 million to
300 million) of children and adolescents under 20 (world-wide) will be killed by
tobacco if they continue smoking throughout their lives.[51]
Furthermore, recent data show a statistically significant increase of 1.8
percent in high school seniors daily smoking from 1992 to 1993.[52]
Therefore, the purpose of the FDA rule, to "reduce the access of tobacco
products to young people under 18 years of age," clearly establishes a
substantial government interest.
Does the regulation directly advance the governmental interest?
In determining the constitutionality of the fit between the means of the FDA's
rule and the goal of reducing underage smoking, a court must first determine
whether the regulations directly advance the state interest.[53] Does the FDA
rule advance the asserted government interest? That depends on whether the
enforcement of the rule would actually reduce the prevalence of smoking among
young people under 18 years of age.
Most debates have been concerned with the effects of tobacco advertising.
Various research methods have been used to study whether cigarette advertising
actually induces children and adolescents to smoke. According to the result of
content analyses, about 17% of the models in cigarette ads seemed to be under 25
years old and those younger models appeared more frequently in magazines with
significant teenage audiences.[54] Pollay concluded, based on his research, that
certain advertisers researched and then targeted specific segments of underage
smokers.[55] However, none of these findings demonstrate that cigarette
advertising actually induces youths to start smoking because the content
analysis method can not address any causal relationship between variables.
Recent surveys have examined R. J. Reynolds' Camel cigarette campaign because
the ads feature Old Joe Camel, a cartoon character that may have particular
appeal to youngsters.[56] Surveys show that 90% of school-age children recognize
that Old Joe promotes cigarettes,[57] a higher recognition rate than that among
adults.[58] Further, 43% of the youths surveyed thought Old Joe was "cool," and
35% liked Old Joe as a friend.[59] However, it is still not clear whether these
responses may simply reflect favorable attitudes toward the cartoon character or
toward smoking.
Several researches have demonstrated a positive correlation between cigarette
advertising exposure and adolescents' intentions to smoke and actual smoking
behaviors. For example, Aitken found that the number of cigarette ads correctly
identified was positively associated with cigarette usage and intended usage
both initially and after a one-year period.[60] However, there is an argument
that the high correlation between advertising awareness and smoking intentions
and behaviors might simply indicate that youths who have already decided to
smoke pay more attention to cigarette ads.[61] Even the FDA agrees that none of
these kind of studies is sufficient to establish that advertising has the effect
of directly causing minors to smoke tobacco products, or determine
directionality [predictability of someone starting smoking].[62]
These defects reduce the FDA's justification that the restrictions on the
advertising (e.g., black-and-white, text-only print ads and prohibition of
billboards within 1,000 feet of elementary and secondary schools and public
playgrounds) will advance the goal of reducing underage smoking "in a direct and
material way."[63] However, there is no doubt that the efforts to restrict
tobacco distribution among adolescents (e.g., requiring age verification in
purchasing tobacco, banning vending machines, and banning free samples, and the
sale of single cigarettes) could substantially reduce underage smoking by
directly regulating tobacco distribution rather than the information about
tobacco. Therefore, despite debates over the impact of tobacco advertising, the
FDA rule might pass the third test of Central Hudson.
Is the regulation more extensive than necessary to achieve that interest?
As originally formulated, this prong is notable for its imprecision. Subsequent
litigation of this prong has demonstrated that this standard of review may range
anywhere from a "least restrictive means" test to a significantly more
deferential and no more precise "reasonable fit" standard.[64]
The FDA agrees with a "reasonable fit" standard and thinks that its regulation
meets this requirement by restricting only those elements of advertising and
promotion that affect young people, while preserving those aspects of
advertising that provide information to adults.[65] However, advertising groups
raise a common First Amendment question of 'Is it of reasonable time and manner
or an overall restraint on free speech?'[66]
The FDA rule restricts print ads in publications to black-and-white, text-only
format if more than 15% (or 2 million) of their readership consists of minors
under age 18. However, it is not clearly addressed why this precise figure
should be applied in restricting publications with still significant amount of
adult readers, say 84%. The rule also prohibit the sponsorship of events (e.g.,
motor sports) under the tobacco brand name.
According to a study (cited by the FDA), children or adolescents comprised less
than 7% of the total viewing audience of 915 million for motorsport events in
1992.[67] Though the FDA argues that its rule is narrowly tailored, the high
percentage of adult viewership (93%) in motorsports seems not sufficient to
persuade the advertising people who complains that the FDA rule is arbitrary,
capricious, and irrational.
Under these circumstances, current commercial speech cases in alcohol
advertising shed a light toward interpreting the reasonable fit standard between
the measures imposed and the intended government interest.
In Rubin v. Coors Brewing Co., the Court rested its opinion on the government's
failure to show that the regulation directly advanced the asserted government
interest. However, the Court went on to suggest that the regulation also would
not survive First Amendment scrutiny because it was "not sufficiently tailored
to its goal."[68] Coors suggested several alternatives to the label ban and the
Court agreed that "the availability of these options, all of which could advance
the Government's asserted interest in a manner less intrusive to _ First
Amendment rights, indicated that the regulation is more extensive than
necessary."[69]
In 44 Liquormart, Inc. v. Rhode Island,[70] the Court was persuaded that
Posadas erroneously performed the First Amendment analysis. The Court suggested
that "Posadas clearly erred in concluding that it was 'up to the legislature' to
choose suppression over a less speech-restrictive policy."[71] The Posadas
majority's conclusion on that point was regarded to be "not [reconcilable] with
the unbroken line of prior cases striking down similarly broad regulations on
truthful, nonmisleading advertising when non-speech-related alternatives were
available."[72] Consequently, the Court decided that "a state legislature does
not have the broad discretion to suppress truthful, nonmisleading information
for paternalistic purposes that the Posadas majority was willing to
tolerate."[73]
The alternative is to assume that information is not in itself harmful, that
people will perceive their own best interests, if only they are well enough
informed, and that the best means to that end is to open the channels of
communication rather than to close them.[74] It would seem that directly banning
a product (or taxing it, controlling its prices, or otherwise restricting its
sale in specific ways) would virtually always be at least as effective in
discouraging consumption as merely restricting advertising regarding the product
would be, and thus virtually all restrictions with such a purpose would fail the
fourth prong of the Central Hudson test.[75]
The availability of less burdensome alternatives to reach the stated goal
signals that the fit between the legislature's ends and the means chosen to
accomplish those ends may be too imprecise to withstand First Amendment
scrutiny.[76] Certainly, there are many ways that the government can reduce the
demand for cigarettes. For example, the government could use counterspeech, or
gradually reduce the level of addictive nicotine.[77] Furthermore, such methods
would not infringe on a constitutional right.
Alternatives to speech restriction
The American Marketing Association has defined marketing as "the process of
planning and executing conception, pricing, promotion, and distribution of
ideas, goods, and services to create exchanges that satisfy individual and
organizational objectives."[78] From the definition, we can see four major
marketing factors in managing a company or business: product, price, place
(distribution channel), and promotion. These factors also work in tobacco sales.
Therefore, it will be more effective if the FDA considers all those factors to
reduce children's easy access to tobacco products, not focusing solely on
promotional aspects (e.g., advertising, sponsorship, giveaways, etc.).
Product regulation:
Other smoking policies may offer more promise than simply intensifying the
current restrictions on tobacco advertising. The typical regulatory strategy in
other risk contexts is to foster technological solutions to safety.[79] For
example, mandated changes in technology, such as catalytic converters for autos
and guards on machines, reduce the risks posed by the product. The introduction
of filter cigarettes and the various "light" cigarettes are in the same vein.
Companies altered the attributes of the product, reducing the estimated risk,
but at some cost to other product attributes, such as taste.
The most dramatic technological change of this type was the introduction of the
smokeless cigaretteDPremierDby R. J. Reynolds.[80] The Premier cigarette
represented a substantial technological breakthrough in cigarette design. Rather
than lighting tobacco, the consumer lit a carbon tip at the end of the
cigarette. This carbon tip in turn heated up an aluminum chamber filled with
porous beads coated with tobacco extract. As these crystals vaporized, the smoke
then passed through tobacco filters and through a conventional filter before
being inhaled. There was no tobacco burned with this cigarette. Smokers could
continue to enjoy the sensation of smoking and the associated value they placed
on nicotine. By eliminating burning tobacco and the hazards linked to it, the
product altered the taste and potential hazards of cigarettes to a greater
extent than any of the previous cigarette innovations.[81]
However, this technological innovation has met with government criticism
and antismoking groups were reluctant to support safer cigarettes since they
hope to eliminate smoking altogether by restricting the market to conventional,
higher-risk cigarettes. Government officials attacked the Premier as a "nicotine
delivery device." Whereas in other risk regulation contexts the government has
mandated safety-related improvements, in the cigarette case it has actively
discouraged the most important safety-related breakthrough in cigarette design.
In 1991, Philip Morris introduced "de-nicotined" cigarettes in the market.
These cigarettes contained approximately 0.1 milligrams of nicotine per
cigarette, as compared with 0.9 milligrams for the Marlboro brand.[82] However,
several antismoking groups criticized the company because of alleged
health-related claims being made. Because nicotine does not affect cigarette
flavor, these critics claimed that any mention of nicotine was necessarily a
health claim.
As above, safety innovations in tobacco products have been discouraged by
the government policies, which were more concerned about smoking rates rather
than health outcomes. However, the expected smoking risk resulting from those
policies will be greater if safer cigarettes are encouraged and consumers are
given the information needed to properly assess their risks.
Even today, product innovation for safety is continued such as the Eclipse
smokeless cigarettes by R. J. Reynolds.[83] At this time, government support is
necessary to promote market competition for safer products.
Price Regulation:
From the standpoint of the consumer, a rise in price is tantamount to decreased
availability and vice versa. Thus, price affects consumer demand. For example,
the mean per capita consumption of alcohol in Ontario between 1928 and 1974
varied inversely with the unit price of alcohol in constant dollars and a
similar relationship has been shown for several European countries.[84] Saffer
and Grossman estimated that simply increasing the rate of excise tax on alcohol
at the rate of inflation would lead to a significant decrease in the number of
18 to 21 year olds killed in alcohol-related automobile crashes.[85] Coate and
Grossman showed that increasing the price of beer through a similar taxation
policy sharply reduced reported drinking among adolescents.[86] Similarly,
smoking may have inverse relationship with the level of taxation on cigarettes.
An extensive set of studies of cigarette smoking demand indicates quite
consistently that the nature of consumers' demand for cigarettes is not entirely
dissimilar from their demand for other products. Viscusi (1992) analyzed the
forty-one studies that have examined the price and income elasticities (i.e.,
percentage change in cigarette demand in response to a percentage change in
price or income) of cigarette demand.[87] The study indicates that cigarette
consumption increases with income but less than proportionally and more affluent
individuals are likely to purchase cigarettes. Despite the diversity of
approaches in the literature, most of the demand elasticities clustered in the
range [from -0.4 to -0.1] and, most strikingly, every study in the analysis was
able to generate estimates that indicate a negative elasticity of demand for
cigarettes.[88] As one would expect with a normal economic good, the demand
curve for cigarettes slopes downward; as the price of cigarette declines,
consumers increase their demand for the product. Similarly, price increases for
cigarettes will reduce consumer demand.
These effects are particularly great in the case of teenagers, who appear to be
most sensitive to the price. The evidence is, however, somewhat mixed, as some
studies indicate greater price responsiveness by teenagers[89] and other studies
indicate no difference between teenagers and adults.[90] However, no studies
suggest that teenagers are less responsive to prices than adults. Furthermore,
the previous studies of Irish adolescents have shown consistently that spending
money is related to tobacco use.[91] Thus, it seems that price should influence
adolescent smoking behavior.
The price responsiveness of cigarette demand implies the potential role of
taxes as a policy instrument for reducing underage smoking behavior. Therefore,
increasing the price of tobacco through a taxation policy should be given some
consideration for the purpose of the FDA rule.
Distribution Channel:
A basic assumption of the FDA is that advertising causes children to start
smoking and that reducing advertising would affect underage smoking. However,
even if the FDA succeeds in deterring tobacco advertising from children, young
people still can access tobacco products through various distribution channels
because advertising is not the only contentious element of the industry's
marketing mix.
To reduce children's easy access to tobacco products, the FDA rule also
bans vending machines except in certain nightclubs and other adult only
facilities totally inaccessible to persons under 18 and requires age
verification by photo ID for anyone under the age of 27 in purchasing tobacco
products. This attention to distribution channels advances the rule one step
ahead of the previous regulations which were mostly dealing with the tobacco
advertising.
However, despite laws in all 50 states that prohibit sales to minors,
numerous studies show that adolescents have little difficulty purchasing tobacco
products. Studies indicate that the vast majority of tobacco retailers sell to
children.[92] A recent survey found that over 77 percent of smokers under the
age of 18 reported never having been asked for proof of age when purchasing
cigarettes in a store in the 30 days preceding the survey.[93] Significant
number of young people successfully purchase smokeless tobacco as well, with 90
percent of smokeless tobacco users in junior high and high school saying they
buy their own smokeless tobacco.[94] The reason is that there was little
enforcement of the laws prohibiting tobacco access to minors with few
exceptions. Therefore, it is unlikely that a minimum smoking age can have any
effect unless accompanied by relatively strict compliance by retail suppliers of
tobacco and by enforcement on the part of the authorities.
Other studies indicate that actively enforced access restrictions have been
effective. For example, a comprehensive community intervention in Woodridge,
Illinois involving retailer licensing, regular compliance checks, and penalties
for merchant violations, reduced illegal sales from 70 percent to less than five
percent in under two years. Rate of both experimentation and regular smoking
decreased more than 50 percent among seventh and eighth grade students in this
community.[95] The effects of such laws (minimum purchase age) are also found in
the cases of alcohol consumption. Cross-sectional survey research has shown that
adolescents from locales with higher drinking ages are more likely to be
abstainers and less likely to be heavy drinkers.[96]They also reported less peer
approval of drinking, less frequent peer drinking, fewer incidents of drinking
and driving, and fewer incidents of intoxication.[97]
Therefore, the FDA rule would effectively and more directly deter underage
access to tobacco if the rule is more strictly enforced with regular and
unannounced inspections on tobacco distribution channels (e.g., by convenience
stores, mail orders, etc.) and stronger sanctions against tobacco retailers and
distributors who sold the product to underage people.
Promotion: Counter speech
In this country, the public school system has been given the primary
responsibility for developing and implementing programs to discourage youngsters
from starting to smoke.[98] Schools have responded by disseminating information
about the health risks of smoking. However, about the same percentage (19%) of
U.S. high school seniors smoke today as did ten years ago, despite their greater
health knowledge.[99] It is, probably, because school-based programs cannot be
completely effective in preventing adolescent tobacco use unless they are
supported by environmental changes that reduce the physical and social
availability of tobacco to youth.
More than twenty years ago, Kotler and Zalman advocated social marketing as a
useful means of implementing social change, arguing that "the application of
marketing to social goals is a natural development and on the whole a promising
one."[100]
One of the most effective way to promote anti-smoking may be through mass media
campaign. The research findings by Pechmann and Ratneshwar suggest that ads with
health-related themes ("smoking will make you short of breath") can remind
youngsters of, and bolster, their beliefs that smoking is unhealthy and unwise,
and ads with psychosocial themes ("no one wants to date a smoker anymore") can
help create the impression that smokers are unglamorous and immature.[101]
Especially, the latter effect should help immunize youths against the myths
about the positive psychosocial consequences of smoking (such as that smokers
are cool, sexy, independent, popular, etc.).
There are other ways to educate children and adolescents about the hazards of
smoking. Ironically, various techniques of tobacco promotion, which will be
restricted by the FDA rule, can be also used to promote anti-smoking messages.
For example, anti-tobacco advertisements on billboards and other outdoor
advertising are encouraged within 1,000 feet of elementary and secondary schools
and public playgrounds. These are places where children and adolescents spend a
great deal of time and where they can be influenced by exposure to anti-smoking
messages. Promotional items (e.g., tee shirts, caps, sporting goods, etc.) could
be used for the same purpose by displaying negative effects of smoking with
bright and colorful pictures or words. Finally, various educational events can
be held to reinforce the effectiveness of the anti-smoking campaign. For
example, an essay contest or art exhibition on the subject of the smoking
problem could be considered. If the FDA has banned these promotion techniques
from tobacco companies for fear of their impact on adolescents, they should also
be applicable to the anti-smoking campaign.
There are numerous other factors, however, that influence whether youths start
to use cigarettes.[102] In particular, socialization processes,[103] including
peer pressure and parental and sibling influences, are important.[104] According
to Grube and Morgan, parent groups can provide a major impetus to counter
adolescent smoking.[105] Research on parent groups has shown that they can
address significant aspects of the home and family, the peer group, the schools
and the larger community that potentially decrease the physical and social
availability of tobacco, alcohol and other drugs to youth.[106] For this reason,
parents also should be targeted in anti-smoking campaigns so that they can
establish consistent guidelines and rules for their own children regarding
tobacco and to keep one another informed of infractions of these rules.
Conclusion
The final rule of the FDA tobacco regulation will undoubtedly have an
impact on a minor's decision whether to take up the habit. Among the four
marketing tools, however, the FDA rule still has placed too much emphasis on the
promotional aspect merely to prevent tobacco products from alluring young
people.
If the rule takes into account every marketing aspect altogether, the
challenged FDA rule can advance the government's interest in reducing underage
smoking in a more direct and material way. For example, by guiding the industry
to compete for safer products, the FDA can save not only the potential tobacco
triers but also the lives of already addicted people. With higher taxes on
tobacco products, the demand can be reduced and the additional money from the
tax can be used for anti-smoking campaigns. The money may also be allotted for
the costs in distribution channel management such as administrative and
monitoring costs. Consequently, the fit between the FDA's ends and the means
chosen to accomplish those ends may become much more reasonable and the
artificial and arbitrary manipulation of information (e.g., black-and-white,
text-only format) will be avoided.
Conclusion
The final rule of the FDA tobacco regulation will undoubtedly have an
impact on a minor's decision whether to take up the habit. However, if the rule
take into account every aspects of marketing factors, the purpose to reduce the
underage smoking will be better served. By guiding the industry to compete for
safer products, the FDA can save not only the potential tobacco triers but also
the lives of already addicted people. With higher taxes on tobacco products, the
demand can be reduced and the amount of money from the tax can be used for
anti-tobacco promotion. The money may also afford for the costs in distribution
channel management such as administrative and monitoring costs.
the availability of less burdensome alternatives to reach the stated goal
signals that the fit between the FDA's ends and the means chosen to accomplish
those ends may be unreasonable to withstand First Amendment scrutiny. Among the
four factor marketing tools, the FDA rule has weighed too much burden on
promotional factors only to prevent tobacco products from alluring young people.
By handling four marketing factors altogether, tobacco access to young
people can be more directly deterred. And in promotion, it will be better
approach to let the ideas compete in the marketplace and let the truth win the
game instead of risking the freedom of speech and expression.
The government should be more confident that it has a lot of tools in
deterring the tobacco advertising as shown above. Now it's the time to turn its
strategy from passively blocking the commercial ideas to actively competing with
those ideas by equipping the children and adolescents with why the smoking is
bad and let them win.
That is safer approach for the problem, through enough education they won't be
misleadingly decide to smoke even when they become adults over 18 years of age.
If the agency take more efforts in regulating other marketing factors such
as product (the nicotine level), price (sales tax adjustment for demand
elasticity), and distribution channel (more strict regulation against tobacco
sales to underage people), the artificial and unnatural manipulation of the flow
of information (e.g., black-and-white, text-only format) will be unnecessary. By
maintaining the tradition of marketplace of ideas, the freedom of expression as
a sender and consumer's right to choose will not be sacrificed.
The ban is more extensive than necessary to serve its stated interest since
alternative forms of regulation that would not involve any speech
restrictionsDe.g., the maintenance of higher prices either by direct regulation
or by increased taxation, the use of educational campaigns focused on smoking
problemsDwould be more likely to achieve the goal of restricting the underage
smoking. Thus, FDA has failed to establish the requisite "reasonable fit"
between its regulation and its goal. 1499
The FDA rule abridging a tobacco company's right to provide the public with
accurate information about the tobacco brand_.
The public's interest in receiving accurate commercial information, also
supports an interpretation of the First Amendment that provides constitutional
protection for the dissemination of accurate and nonmisleading commercial
messages.
Advertising, however tasteless and excessive it sometimes may seem, is
nonetheless dissemination of information as to who is producing and selling what
product, for what reason, and at what price. It is a matter of public interest
that those decisions, in the aggregate, be intelligent and well informed. To
this end, the free flow of commercial information is indispensible.
Establishing protection of commercial speech: 1975-1979
The rule that commercial speech had no first amendment protection (Valentine v.
Chrestensen, 1942) began to erode when the Court invalidated a Virginia statute
that criminalized the sale or circulation of any publication that encouraged
procurement of an abortion (Bigelow v. Virginia 1975). The Court stated that the
government cannot restrict advertising where the commercial activity itself is
legal and further noted that the "_ activity advertised pertained to
constitutional interests" (Bigelow 1975, pp 821-822).
In an ensuing case, the Court struck down another Virginia statute that had
outlawed advertising of prescription drug prices. The court stated that, "If
there is a right to advertise, there is a reciprocal right to receive the
advertising_" (Virginia State Board of Pharmacy v. Virginia Citizens' Consumer
Council 1976, p 757).
The court did not, however, prohibit all regulation of commercial speech. The
government could place reasonable restrictions upon the time, place, and manner
of speech and could also enforce regulations that dealt with false, deceptive,
or misleading advertising. The Court pointed out that commercial speech
protection might not exist for proposed illegal transactions. It also noted that
a different standard might apply for advertising in the electronic broadcast
media.
Refining the Central Hudson standard: 1993
The Supreme Court applied the Central Hudson standard in three 1993 commercial
speech cases, probably causing more confusion than clarification. In City of
Cincinnati v. Discovery Network (1993) and Edenfield v. Fane (1993), the Court
rejected a city ordinance prohibiting magazine and handbill news racks (while
allowing newspaper racks) and overturned a Florida statute preventing
accountants from soliciting clients in person and by phone, respectively.
Although they met the first two prongs of the Central Hudson, both these rules
failed the third prong, that is, neither standard directly advanced either
governmental unit's asserted interests. Both governments could have achieved
their interest in other ways that did not unreasonably restrict commercial
speech.
Conversely, the Court upheld a federal law prohibiting radio stations from
broadcasting lottery ads in states where lotteries are forbidden (US and FCC v.
Edge Broadcasting Co. 1993). A radio station in North Carolina (which has no
lottery), with 92% of its listeners living in Virginia (which has a lottery),
challenged the federal statute. The Court accepted the state's argument without
relying on any demonstrable evidence, contrary to Edenfield.
Taken together, Edenfield and City of Cincinnati require the government to
support its position more thoroughly when banning certain forms of commercial
speech. Edge Broadcasting, however, relaxes the evidentiary requirements for the
state. Moreover, the Court has yet to clarify the term reasonable when applied
to a law regulating commercial speech.
[1] Jim O'Hara, President Clinton Announces Historic Steps to Reduce Children's
Use of Tobacco (released Aug. 23, 1996) <http://
www.os.dhhs.gov/news/press/1996pres/960823a.html>.
[2] Id.
[3] 116 S.Ct. 1495 (1996).
[4] Ira Teinowitz, "Historic Attack on Cig Marketing, Tough Regs for Tobacco"
Advertising Age, (August 26, 1996).
[5] 115 S.Ct. 1585 (1995).
[6] U.S. Department of Health, Education, and Welfare, "Smoking and Health:
Report of the Advisory Committee to the Surgeon General of the Public Health
Service," Public Health Publication No. 1103 (Washington, D.C.: U.S. Government
Printing Office, 1964).
[7] W. Kip Viscusi, Smoking: Making the Risky Decision (New York: Oxford
University Press, Inc., 1992).
[8] U.S. Department of Health, Education, and Welfare, supra note 6, at 31-33.
[9] Gideon Doron, The Smoking Paradox (Cambridge, Massachusetts: 1979).
[10] Communications Act, 315 (a), 47 U.S.C.
[11] Banzhaf v. F.C.C., 405 F.2d 1082 (1968).
[12] Id.
[13] Gideon Doron, supra note 9, at 17.
[14] 316 U.S. 52 (1942).
[15] Bigelow v. Virginia, 421 U.S. 809 (1975).
[16] Id.
[17] Id., at 825-826.
[18] 425 U.S. 748 (1976).
[19] Id.
[20] Id. at 765.
[21] 447 U.S. 557 (1980).
[22] Id. at 571.
[23] Id. at 566.
[24] David F. McGowan, "A Critical Analysis of Commercial Speech," California
Law Review, 78: 359-448 (1990).
[25] Karl A. Boedecker, Fred W. Morgan, & Linda Berns Wright, "The Evolution of
First Amendment Protection for Commercial Speech," Journal of Marketing 59:
38-47 (1995).
[26] 478 U.S. 328 (1986).
[27] Id.
[28] Id.
[29] Id. at 346.
[30] 115 S.Ct. 1585 (1995).
[31] 447 U.S. 557 (1980).
[32] 115 S.Ct. at 1587.
[33] 116 S.Ct. 1495 (1996).
[34] Id.
[35] 478 U.S. at 345-346.
[36] 116 S.Ct. at 1512.
[37] Id.
[38] 116 S.Ct. 1495 at 1500. (1) the speech at issue concerns lawful activity
and is not misleading, (2) the asserted governmental interest is substantial,
and (3) the regulation directly advances the governmental interest.
[39] Id. at 1521.
[40] Id.
[41] Central Hudson, 447 U.S. at 566.
[42] Richard W. Pollay, "Signs and Symbols in Cigarette Advertising: A
Historical Analysis of the Use of Pictures of Health," in Marketing & Semiotics,
Hanne Hartvig-Larsen, David G. Mick, & Christian Alsted, eds. (Copenhagen:
Handelshojskolens Forlag. 1991), 160-176.
Richard W. Pollay, "The Changing Character of American Cigarette Advertising:
Content Analysis Findings," World Marketing Congress 6: 297-301 (1993).
U.S. Department of Health and Human Services, Preventing Tobacco Use Among Young
People: A Report of the Surgeon General, (Atlanta, GA: U.S. Department of Health
and Human Services, Public Health Service, Centers for Disease Control and
Prevention, Office on Smoking and Health 1994), 179-184.
[43] Michael Mazis, Debra J. Ringold, Elgin S. Perry & Daniel W. Denman,
"Perceived Age and Attractiveness of Models in Cigarette Advertisements,"
Journal of Marketing 56: 22-37 (1992).
[44] Larry C. White, Merchants of Death (New York: Beech Tree Books, William
Morrow and Co., Inc., 1988) at 158.
[45] Id. at 158-159.
[46] Avram Goldstein & Harold Kalant, "Drug Policy: Striking the Right
Balance," Science 249: 1513-1521 (1990).
[47] Oklahoma Telecasters Association v. Crisp, 699 F.2d 490 (10th Cir. 1985);
Dunagin v. City of Oxford, Mississippi, 718 F.2d 738 (5th Cir. 1983).
[48] Central Hudson, 447 U.S. at 566.
[49] Joseph R. DiFranza & Joe B. Tye, "Who Profits from Tobacco Sales to
Minors?" Journal of the American Medical Association 263: 2784-2787 (1990).
[50] Laurie Chassin, Clark C. Presson, Steven J. Sherman, Eric Corty, & Richard
W. Olshavsky, "Predicting the Onset of Cigarette Smoking in Adolescents: A
Longitudinal Study," Journal of Applied Social Psychology 14: 224-243 (1984).
Laurie Chassin, Clark C. Presson, Steven J. Sherman, & Debra A. Edwards, "The
National History of Cigarette Smoking: Predicting Young-Adult Smoking Outcomes
from Adolescent Smoking Patterns," Health Psychology 9: 701-716 (1990).
[51] Rebecca Voelker, "Young People May Face Huge Tobacco Toll," Journal of the
American Medical Association 274: 203 (1995).
[52] L. Johnston, P. O'Malley, & J. Bachman, "Monitoring the Future Study"
Press release, University of Michigan, Ann Arbor, MI, January 31, 1994.
[53] Central Hudson, 447 U.S. at 564.
[54] Michael B. Mazis, Debra Jones Ringold, Elgin S. Perry, & Daniel W. Denman,
"Perceived Age and Attractiveness of Models in Cigarette Advertisements,"
Journal of Marketing 56: 22-37 (1992).
[55] Richard W. Pollay, & Anne M. Lavack, "The Targeting of Youths by Cigarette
Marketers: Archival Evidence on Trial," In Advances in Consumer Research 20, ed.
Leigh McAllister and Michael Rothschild. (Provo, Utah: Association for Consumer
Research, 1993).
[56] See, e.g., Paul M. Fischer, Meyer P. Schwartz, John W. Richards, Jr., Adam
O. Goldstein, & Tina H. Rojas, "Brand Logo Recognition by Children Aged 3 to 6
Years," Journal of the American Medical Association 11: 3145-3146 (1991); Joseph
R. DiFranza, John W. Richards, Jr., Paul M. Paulman, Nancy Wolf-Gillespie,
Christopher Fletcher, Robert D. Jaffe, & David Murray, "RJR Nabisco's Cartoon
Camel Promotes Camel Cigarettes to Children," Journal of the American Medical
Association 11: 3149-3153 (1991); John P. Pierce, Elizabeth Gilpin, David M.
Burns, Elizabeth Whalen, Bradley Rosbrook, Donald Shopland, & Michael Johnson,
"Does Tobacco Advertising Target Young People to Start Smoking?" Journal of the
American Medical Association 11: 3154-3158 (1991).
[57] Paul M. Fischer, Meyer P. Schwartz, John W. Richards, Jr., Adam O.
Goldstein, & Tina H. Rojas, "Brand Logo Recognition by Children Aged 3 to 6
Years," Journal of the American Medical Association 11: 3145-3146 (1991).
[58] Joseph R. DiFranza, John W. Richards, Jr., Paul M. Paulman, Nancy
Wolf-Gillespie, Christopher Fletcher, Robert D. Jaffe, & David Murray, "RJR
Nabisco's Cartoon Camel Promotes Camel Cigarettes to Children," Journal of the
American Medical Association 11: 3149-3153 (1991).
[59] Id.
[60] P. P. Aitken, D. R. Eadie, G. B. Hastings, & A. J. Haywood, "Predisposing
Effects of Cigarette Advertising on Children's Intentions to Smoke When Older,"
British Journal of Addiction 86: 383-390 (1991).
[61] U.S. Department of Health and Human Services, Reducing the Health
Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General.
Public Health Service, Centers for Disease Control, Centers for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, DHHS Publication
No. (CDC) 89-8411(1989).
[62] Ira Teinowitz, "FDA's goal in curbing cigarette ads: 'To Address Death'"
Advertising Age (September 9, 1996).
[63] Rubin, 115 S.Ct. at 1592 (quoting Edenfield, 113 S.Ct. at 1798).
[64] Board of Trustees v. Fox 492 U.S. 469 (1989). Writing for the majority,
Justice Scalia concluded that the standard is "something short of a
least-restrictive standard." Scalia's position stemmed from the need to
establish a standard lower than that accorded pure speech.
[65] U.S. Food and Drug Administration, Executive Summary: The Regulations
Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to
Protect Children and Adolescents, (last revised August 1996)
<http://fdabbs.fda.gov/opacom/campaigns/tobacco/execrule.html>.
[66] Ira Teinowitz, "Historic Attack on Cigarette Marketing Tough regulations
for Tobacco," Advertising Age (August 26. 1996).
[67] J. Slade, "Tobacco Product Advertising During Motorsport Broadcasts: A
Qualitative Assessment," paper presented to the 9th World Conference on Tobacco
and Health (October 10-14, 1995).
[68] 115 S.Ct. at 1593.
[69] Id. at 1593-1594.
[70] 116 S.Ct. 1585.
[71] Id. at 1511.
[72] Id.
[73] Id.
[74] Virginia State Bd. of Pharmacy, 425 U.S. 748 (1976).
[75] 44 Liquormart, Inc., 116 S.Ct. at 1519.
[76] Id. at 1521.
[77] See findings contained in H.R. 1853, 104th Cong. _ 2 (1995).
[78] Peter D. Bennett, Dictionary of Marketing Terms (Chicago: American
Marketing Association, 1988), p. 115.
[79] W. Kip Viscusi, Smoking: Making the Risky Decision, (New York, Oxford
University Press, 1992).
[80] Id. at 146.
[81] Id.
[82] Id. at 148.
[83] Robert M. McMath, "Smokeless isn't Smoking: Despite Research That Would
Discourage Others, R. J. Reynolds is Making a Second Attempt to Launch a
Virtually Smokeless Cigarette," American Demographics 18: 60 (1996).
[84] Avram Goldstein & Harold Kalant, "Drug Policy: Striking the Right
Balance," Science, 249: 1513-1521 (1990).
[85] H. Saffer & M. Grossman, "Beer Taxes, the Legal Drinking Age, and Youth
Motor Vehicle Fatalities," Journal of Legal Studies 16: 351-374 (1987).
[86] D. Coate & M. Grossman, "Effects of Alcoholic Beverage Prices and Legal
Drinking Ages on Youth Alcohol Use," Journal of Law and Economics 31: 145-171
(1988).
[87] W. Kip Viscusi, supra note 79.
[88] Id. at 105-106.
[89] E. M. Lewit, D. Coate, & M. Grossman, "The Effects of Government
Regulation on Teenage Smoking," Journal of Law and Economics 24: 545-569 (1981).
[90] J. Wasserman, W. G. Newhouse, & J.D. Winkler, "The Effects of Excise Taxes
and Regulations on Cigarette Smoking," Journal of Health Economics 10: 43-64
(1991).
[91] J. W. Grube, S. McGree & M. Morgan, "Smoking Behaviors, Intentions and
Beliefs Among Dublin Primary School Children," The Economic and Social Review,
15: 265-288 (1984).
A. O'Rourke, N. O'Sullivan & K. Wilson-Davis, "A Dublin Schools Smoking Survey,
Part II: Smoking and Attitudes," Irish Journal of Medical Science 1: 463-470
(1968).
[92] Doctors and Lawyers for a Drug-Free Youth, Cigarette Readily Sold to
Children in 90 U.S. Communities, Tobacco Legislation Recommended (Champaign, IL:
Doctors and Lawyers for a Drug-Free Youth, 1991).
D Altman, V. Foster, T. Rasenick-Douss, & J. Tye, "Reducing the Illegal Sales of
Tobacco to Minors," Journal of the American Medical Association 261: 80-83
(1989).
[93] State of Connecticut v. Philip Morris, Inc.; R. J. Reynolds Tobacco Co.;
Brown & Williamson Tobacco Co., etc. (July 18, 1996), n. 230
<http://www.tobacco.neu.edu/AG/Ct/5concomp.htm>.
[94] U.S. Department of Health and Human Services, Youth Use of Smokeless
Tobacco: More than a Pinch of Trouble. USDHHS, Office of Inspector General.
Control No. P-06-86-0058, (1986).
[95] L. A. Jason, et al., "Active Enforcement of Cigarette Control Laws in the
Prevention of Cigarette Sales to Minors," Journal of the American Medical
Association 266: 3159-3161 (1991).
[96] S. A. Maisto & J. V. Rachal, "Indication of the Relationship Among
Adolescent Drinking Practices, Related Behaviors, and Drinking Age Laws," in H.
Wechler (ed.), Minimum Drinking Age Laws (Lexington, MA: Heath, 1980), 155-176.
[97] Id.
[98] Cornelia Pechmann & S. Ratneshwar, "Advertising Versus Prior Beliefs: Does
Cigarette and Anti-Smoking Advertising Alter Young Adolescents' Perceptions of
Smokers?" Marketing Science Institute Report No. 93-125 (Cambridge,
Massachusetts: Marketing Science Institute, December 1993).
[99] U.S. Department of Health and Human Services, Reducing the Health
Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General.
Public Health Service, Centers for Disease Control, Centers for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, DHHS Publication
No. (CDC) 89-8411(1989).
[100] Philip Kotler & Gerald Zaltman, "Social Marketing: An Approach to Planned
Social Change," Journal of Marketing 35: 3-12 (1971).
[101] Pechmann, & Ratneshwar, supra note 98.
[102] U.S. Department of Health and Human Services, supra note 99.
[103] George P. Moschis, "Social Comparison and Informal Group Influence,"
Journal of Marketing Research 13: 237-244 (1976).
George P. Moschis, "The Role of Family Communication in Consumer Socialization
of Children and Adolescents," Journal of Consumer Research 11: 898-913 (1985).
[104] Richard J. Eiser & Joop van der Pligt, "Attitudinal and Social Factors in
Adolescent Smoking: In Search of Peer Group Influence," Journal of Applied
Social Psychology 14: 348-363 (1984).
Nancy P. Gordon, "Never Smokers, Triers and Current Smokers: Three Distinct
Target Groups for School-based Antismoking Programs," Health Education Quarterly
13: 163-180 (1986).
Alfred L. McAlister, Jon. A. Krosnick & Michael A. Milburn, "Causes of
Adolescent Cigarette Smoking: Tests of a Structural Equation Model," Social
Psychology Quarterly 47: 24-36 (1984).
George P. Moschis, "Point of View: Cigarette Advertising and Young Smokers,"
Journal of Advertising Research 29: 51-60 (1989).
[105] Joel W. Grube & Mark Morgan, The Development and Maintenance of Smoking,
Drinking and Other Drug Use Among Dublin Post-Primary Pupils, (Dublin: The
Economic and Social Research Institute, 1990).
[106] See, e.g., M. Klitzner, E. Bamberger, & P. J. Gruenewald, "The Assessment
of Parent-Led Prevention Programs: A National Descriptive Study," Journal of
Drug Education 20: 111-125 (1990); M. Klitzner, P. J. Gruenewald, & E.
Bamberger, "The Assessment of Parent-Led Prevention Programs: A Preliminary
Assessment of Impact," Journal of Drug Education 20: 77-94 (1990).
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