Journal of Free Speech Law: “Speech Regulation and Tobacco Harm Reduction,” by Jonathan H. Adler & Jacob James Rich
Here is the Introduction; the full article is here:
Regulatory constraints on the provision of truthful information to consumers about tobacco products may be having deadly consequences. Different types of tobacco products present different degrees of risk, yet a substantial proportion of consumers are unaware of these differences. Existing regulations governing tobacco products limit the ability of manufacturers to address these misperceptions. As a consequence, well-intentioned public health regulations may be undermining the protection of public health.
Regulation of commercial speech is a major component of federal regulation of tobacco products. Even before the enactment of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), Congress authorized cigarette warning labels and the regulation of cigarette advertisements. In 2009, this legislation expanded the regulation of speech, imposed a permitting regime for comparative health claims of alternative tobacco products and subjected cigarette alternatives, such as electronic nicotine delivery systems (ENDS) and other vaping products, to the same regulatory regime as cigarettes.
Federal regulation of tobacco company speech was adopted to counteract tobacco industry misinformation and manipulation of consumers. Controlling the advertisement, promotion, and labeling of tobacco products was embraced as a central element of reducing smoking rates and youth initiation in particular. While the regulation of tobacco advertising and labeling was considered an important public health measure, it was nonetheless subject to First Amendment scrutiny.
Since the adoption of federal tobacco legislation, the Food and Drug Administration (FDA) has assert
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