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Tobacco Regulation Legislation Tramples Commercial Free Speech

  
American Conservative Union
In Washington, there is never a shortage of ideas on new regulations that someone would like to impose on the American people or American commerce. One such proposal now pending in Congress is a plan to have the Food and Drug Administration regulate all tobacco products. As the New York Times reported last week, proponents, led by Tom Davis (R-VA) and Henry Waxman (D-CA) in the House, and Mike DeWine (R-OH) and Ted Kennedy (D-MA) in the Senat,e are pushing for legislation that would “let the Food and Drug Administration regulate tobacco as a drug.”

The tobacco regulation movement is gathering steam, and that shouldn’t surprise anyone. After all, tobacco is often considered an easy political target. But there is one major problem with tobacco regulation legislation now under consideration. It runs afoul of a cornerstone of American democracy: The First Amendment right of free speech.
When most Americans think of “free speech” they think of the right to tell people their views on political candidates or the right to author a newspaper column such as this. But another important aspect of Constitutionally-guaranteed free speech is the right of companies to make statements about their products through advertising or other means, so long as those statements are truthful. Such statements are generally known as “commercial free speech,” and the tobacco regulation bill now before Congress snubs its nose at those rights.

One section of the pending legislation would effectively prohibit a tobacco company or tobacco distributor from communicating truthful information about the relative risks of tobacco products. Indeed, this type of communication by distributors is directly and specifically prohibited by the bill. In the case of tobacco companies, conveying risk information that isn’t approved by the FDA would be a violation of the new law. Conveniently, this section of the bill ignores the fact that the First Amendment does not permit the government to declare a subject that is of scientific and public policy interest to tobacco companies and distributors to be off limits to public discussion.
Recent court decisions have held that the FDA can’t prohibit truthful, non-misleading product claims on policy grounds. But provisions of the pending legislation would do just that.
Even though this legislation is problematic from a Constitutional perspective, it shouldn’t surprise anyone that such language has found its way into the bill. After all, some of the leading proponents are organizations such as the Campaign for Tobacco-Free Kids, the American Heart Association and the American Cancer Society which have long championed restrictions on what tobacco companies could say about themselves. Fortunately, the anti-tobacco campaigners don’t trump the First Amendment.

The on-going debate of how best to educate Americans about tobacco is a legitimate one. But for that debate to go forward in a reasonable and fair manner, the right of all parties to speak the truth must be preserved. Fortunately, the First Amendment is on the side of preserving that right. Free speech – either political or commercial – is a bedrock principle not only of American law but also of America’s character and culture. It always has been, and must remain so. The tobacco regulation bill now before Congress is inconsistent with that principle and should be rejected.
Stacie Rumenap is Deputy Director of the American Conservative Union, the nation’s oldest and largest conservative grassroots organization.