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Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada

Published online by Cambridge University Press:  06 January 2021

Micah L. Berman
Micah L. Berman*
Affiliation:
Ohio State University's College of Public Health and Moritz College of Law
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Extract

In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA’s) proposed graphic health warnings for cigarette packages violated tobacco companies’ First Amendment rights. In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries’ experiences by stating (first at oral argument and then in his decision) that “none of [those countries] afford First Amendment protections like those found in our Constitution.”

While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. Indeed, several other countries apply “strikingly similar” legal tests when reviewing restrictions on speech (and on commercial speech in particular). Thus, the statement that other countries do not “afford First Amendment protections like those found in our Constitution” is an oversimplification.

Type
Article
Information
American Journal of Law & Medicine , Volume 39 , Issue 2-3 , June 2013 , pp. 218 - 236
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2013

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References

1 R.J. Reynolds Tobacco Co. v. FDA, 823 F. Supp. 2d 36 (D.D.C. 2011), aff’d, 696 F.3d 1205 (D.C. Cir. 2012). This decision was affirmed by the appellate court and the FDA elected not to seek review by the Supreme Court.

2 Id. at 48 n.21 (emphasis added).

3 See Krotoszynski, Ronald J. Jr., The Chrysanthemum, the Sword, and the First Amendment: Disentangling Culture, Community, and Freedom of Expression, 1998 WIS. L. REV. 905, 905 (1998)Google Scholar.

4 Carmi, Guy E., Dignity Versus Liberty: The Two Western Cultures of Free Speech, 26 B.U. INT’L L.J. 277, 369 (2008)Google Scholar.

5 R.J. Reynolds Tobacco Co., 823 F. Supp. 2d at 48 n.21 (emphasis added). Also lost in Judge Leon's dismissal of the experiences of other countries is that those experiences provide a highly probative form of evidence. Even if the precise details of legislation are different (e.g., the warnings labels in other countries are not identical to those proposed by the FDA), the experiences of foreign countries are still relevant to the First Amendment tests laid down by the Supreme Court. For example, the Central Hudson test used to review restrictions on commercial speech asks the government to demonstrate whether the proposed restriction “directly advances the government interest asserted.” Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’r of N.Y., 447 U.S. 557, 566 (1980). Evidence from other countries’ experiences can help to inform this analysis.

6 Cf. Krotoszynski, supra note 3, at 913 (suggesting that “examination of freedom of speech in Japan leads to a more insightful understanding of our domestic speech rights and a heightened awareness of the implicit costs and benefits associated with maintaining these rights”).

7 There is no clear definition of “commercial speech.” In Bolger v. Youngs Drug Products Corp., the Supreme Court suggested that following factors should be considered in determining whether speech is commercial: (1) whether the speech proposes a commercial transaction, (2) whether the speech references a specific product, and (3) whether the speaker is motivated by economic aims. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-76 (1983).

8 See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, §§ 1-2; see also R. v. Oakes, [1986] 1 S.C.R. 103 (Can.).

9 See S. AFR. CONST., 1996 §§ 16, 36 (protecting freedom of expression, but allowing for such a right to be limited under a balancing test taking into account “a. the nature of the right; b. the importance of the purpose of the limitation; c. the nature and extent of the limitation; d. the relation between the limitation and its purpose; and e. less restrictive means to achieve the purpose”). These provisions were recently applied to restrictions on tobacco marketing in British American Tobacco South Africa Ltd. v. Minister of Health 2012 (3) SA 593 (SCA) (S. Afr.).

10 See Krotoszynski, supra note 3, at 931-33 (discussing Japan's constitutional protection for freedom of speech and noting that like the U.S. Supreme Court, “the Supreme Court of Japan routinely has balanced the individual's interest in freedom of expression against other private interests and public interests”).

11 Nearly all countries in Europe are parties to the 1953 European Convention for the Protection of Human Rights and Fundamental Freedoms. See Convention for the Protection of Human Rights and Fundamental Freedoms, COUNCIL OF EUR. (Mar. 3, 2013), http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG. While not a constitution, the Convention is binding on all member states, and its provisions are enforced by the European Court of Human Rights. See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4 1950, E.T.S. 5, 213 U.N.T.S. 221 (Nov. 4, 1950), available at http://conventions.coe.int/treaty/en/treaties/html/005.htm. The Convention protects freedom of expression, including commercial expression, and its protections are “similar theoretically and conceptually” to those provided by the First Amendment. Johnson, Bruce E.H. & Youm, Kyu Ho, Commercial Speech and Free Expression: The United States and Europe Compared, 2 J. INT’L MEDIA & ENT. L. 159, 161 (2009)Google Scholar.

12 U.S. CONST. amend. I.

13 For instance, even religious and political speech can be subjected to “time, place, and manner” limitations, so long as such restrictions are content-neutral. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009).

14 See González, Carlos E., The Logic of Legal Conflict: The Perplexing Combination of Formalism and Anti-Formalism in Adjudication of Conflicting Legal Norms, 80 OR. L. REV. 447, 468 n.34 (2001)Google Scholar.

15 See Valentine v. Chrestensen, 316 U.S. 52, 54 (U.S. 1942) (“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”).

16 See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).

17 Id. at 770 (holding that the state is “free to require whatever professional standards it wishes of pharmacists” but that “it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering”).

18 Id. at 764-70.

19 ERIC BARENDT, FREEDOM OF SPEECH 400-01 (2d. ed. 2005) (footnotes omitted). Justice Rehnquist dissented from the opinion, objecting to the creation of a new commercial speech doctrine that “elevates commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas.” Va. State Bd. of Pharmacy, 425 U.S. at 781 (1976) (Rehnquist, J., dissenting).

20 The second and third reasons listed by Justice Blackmun both relate back to the interest in ensuring that consumers are able to obtain access to information. Id. at 764-70.

21 Id. at 753-54.

22 Id. at 769.

23 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564-66 (1980).

24 Id. at 564.

25 Id.

26 Id. at 566.

27 See id.

28 Id. at 573 (Blackmun, J., concurring) (characterizing the four-part test applied by the majority as a form of intermediate scrutiny).

29 See id. at 563 (“The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”).

30 See id. (“The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.”).

31 Id. at 566.

32 Rauer, Samantha, Note, When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations that Restrict Commercial Speech, 38 AM. J.L. & MED. 690, 693 (2012)Google Scholar.

33 Edenfield v. Fane, 507 U.S. 761, 771 (1993) (invalidating limits on the solicitation of business by accountants).

34 44 Liquormart v. Rhode Island, 517 U.S. 484, 511-14 (1996) (striking down a Rhode Island law that limited the advertisement of prices for alcoholic beverages).

35 See Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 345-46 (1986) (upholding a statute limiting advertising for casino gambling in Puerto Rico by concluding that “the greater power to completely ban casino gambling includes the lesser power to ban advertising of casino gambling”).

36 Thompson v. W. States Med. Ctr., 535 U.S. 357, 371 (2002) (invalidating FDA regulations restricting the advertising of compounded pharmaceuticals).

37 Sorrell v. I.M.S. Health Inc., 131 S. Ct. 2653, 2664 (2011) (voiding a Vermont law barring pharmaceutical companies from using pharmacy records showing the prescribing practices of individual physicians in their marketing efforts).

38 Id. at 2671.

39 This is the tobacco companies’ preferred language. When referring to tobacco, “deadly” would be a more appropriate adjective than “disfavored.”

40 See Micah Berman, Kathleen Dachille & Julie Ralston Aoki, Sorrell and the Future of Commercial Speech Regulations, JURIST (Oct. 4, 2011), http://jurist.org/forum/2011/10/berman-dachille-aoki-sorrell.php (suggesting that Sorrell is distinguishable from tobacco-related cases and might not signify a significant shift in the way courts addresses advertising restrictions on harmful products).

41 See, e.g., Nat’l Ass’n of Tobacco Outlets v. City of Worcester, 851 F. Supp. 2d 311, 319 (D. Mass. 2012) (“Under Sorrell, the City of Worcester may not seek to remove a popular but disfavored type of products—those products that serve tobacco usage—from the marketplace by prohibiting truthful, nonmisleading advertisements directed to adults.”).

42 Lorillard v. Reilly, 533 U.S. 525, 561-66 (2001). Technically, the decision struck down the limits with respect to cigarette advertising on other legal grounds. See id. at 550-51 (striking down Massachusetts's regulation on outdoor and point of sale cigarette advertising on the grounds of federal preemption). It struck down the limits on cigar and smokeless tobacco advertising on First Amendment grounds. See id. at 566.

43 Id. at 554.

44 See id. at 558-61 (internal quotation marks omitted).

45 Id. at 556 (quoting Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 188 (1999)) (internal quotation marks omitted).

46 Id. at 562.

47 See id.

48 See id. at 565.

49 See id. at 562-63.

50 Id. at 563.

51 See id.

52 See id. at 565 (“We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State's substantial interest in preventing underage tobacco use.”).

53 See, e.g., Calvert, Clay, Allen-Brunner, Wendy & Locke, Christina M., Playing Politics or Protecting Children? Congressional Action & A First Amendment Analysis of the Family Smoking Prevention and Tobacco Control Act, 36 J. LEGIS. 201, 205 (2010)Google Scholar (suggesting that the tobacco advertising restrictions in the Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (to be codified at 15 U.S.C. § 1333 (labeling), 15 U.S.C. § 4402 (smokeless tobacco warning), 21 U.S.C. § 387a-1 (final rule)), “seem[] to have been crafted behind a veil of legal ignorance—or, perhaps, a willful blindness—of Lorillard and pertinent academic scholarship surrounding it”); Hoefges, Michael, Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8 COMM. L. & POL’Y 267, 305 (2003)Google Scholar (writing that the Lorillard decision “effectively places tobacco advertising on the same constitutional level as advertising for other lawful goods and services under the First Amendment” and suggests that restrictions intended to protect children from tobacco advertising are likely to be invalidated).

54 See generally Rauer, supra note 32.

55 The Supreme Court may agree to review a case challenging the advertising restrictions in the Family Smoking Prevention and Tobacco Control Act in the coming year. Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012), petition for cert. filed sub nom. Am. Snuff Co., LLC v. United States, No. 12-521 (Oct. 26, 2012). This would give the Court the opportunity to further clarify its approach to the regulation of tobacco advertising.

56 ROGER A. SHINER, FREEDOM OF COMMERCIAL EXPRESSION 91 (2003) (noting that the Canadian Supreme Court has, like the U.S. Supreme Court, “struck down numerous … provincial restrictions on professional advertising” and “invalidated restrictions controlling the advertising of, respectively, alcohol and tobacco”).

57 See id. at 70.

58 See id.

59 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11, § 1 (U.K.).

60 Id. § 2. Note that section 2 covers essentially the same subject matter as the First Amendment (religion, speech/expression, press, assembly/association).

61 See SHINER, supra note 56, at 71.

62 See id.

63 See id.

64 See id. (contrasting Section 2 with the First Amendment).

65 See supra note 13 and accompanying text.

66 See supra notes 29-30 and accompanying text.

67 Although the First Amendment is written in unqualified form while Canada's Constitution explicitly permits a balancing of competing interests, that distinction likely has little practical effect in the case of restrictions on commercial speech. Cf. Johnson & Youm, supra note 11, at 195-96 (“As the commercial speech case law of the [U.S.] Supreme Court and the [European Court of Human Rights] indicates, it makes little difference whether the constitutional guarantee of freedom of speech or of the press is textually qualified or unqualified.”).

68 R. v. Oakes, [1986] 1 S.C.R. 103 (Can.).

69 SHINER, supra note 56, at 71.

70 Ford v. Quebec (Att’y Gen.), [1988] 2 S.C.R. 712, 758 (Can.) (writing that the Central Hudson test is “an attempt to balance the legitimacy of government regulations intended to protect consumers from harmful commercial speech with the belief that a free market in ideas and information is necessary to an informed and autonomous consumer”).

71 See id.

72 Compare Oakes, 1 S.C.R. at 138-39, with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980) (“The State must assert a substantial interest to be achieved by restrictions on commercial speech.”).

73 Oakes, 1 S.C.R. at 139.

74 Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566.

75 Compare Oakes, 1 S.C.R. at 139, with Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566 (“[S]peech restrictions [must] be ‘narrowly drawn.’ The regulatory technique may extend only as far as the interest it serves.”).

76 SHINER, supra note 56, at 72.

77 Ford v. Quebec (Att’y Gen.), [1988] 2 S.C.R. 712, 766-67 (Can.) (emphasis added). According to Karla Gower, commercial speech had not been deemed to fall within Canada's protections for freedom of speech in the pre-Charter era. See Gower, Karla K., Looking Northward: Canada's Approach to Commercial Expression, 10 COMM. L. & POL’Y 29, 36 (2005)Google Scholar.

78 See generally Gower, supra note 77, at 42-56 (summarizing Ford and its progeny).

79 Id. at 45 (noting the Canadian Supreme Court's rejection of an approach to commercial speech that would involve defining it as a separate category of speech: “The Canadian Court made it clear that it did not want to get into the problem of trying to define commercial expression. It chose instead to take a purposive approach to determining whether the speech in question warranted Charter protection”).

80 Id. at 46 (stating that the Canadian Supreme Court “took as a matter of faith that the Charter was not confined to the protection of political expression” and applied Oakes to all forms of expression).

81 See Rocket v. Royal Coll. of Dental Surgeons of Ont., [1990] 2 S.C.R. 232, 246-47 (Can.).

82 Id.

83 Id. at 247.

84 Id.

85 See id. at 251.

86 See Gower, supra note 77, at 56 (writing that the Canadian Supreme Court “is cognizant of the importance of commercial expression to consumers’ economic decision-making and does its part to protect commercial expression on the basis of its role in a free marketplace”).

87 RJR-MacDonald Inc. v. Canada (Att’y Gen.), [1995] 3 S.C.R. 199 (Can.).

88 See id. at 200.

89 See id. at 204.

90 See id. at 206.

91 See id. at 207.

92 Id. at 347 (emphasis added).

93 See id. at 349.

94 Tobacco Act, S.C. 1997, c. 13, § 22(2). Such advertising was permitted only if directly mailed to adults, in publications with eighty-five percentor more adult readership, or in places youth were not permitted to go. See WORLD HEALTH ORG., CANADA's FIRST (TWO-YEAR) IMPLEMENTATION REPORT: ANNEX 1: MISCELLANEOUS 42 (2007) (Can.), available at http://www.who.int/fctc/reporting/Canada_annex_miscellaneous.pdf.

95 See Tobacco Act § 22(4).

96 Id.

97 See id. § 22.

98 See id. § 20.

99 Canada (Att’y Gen.) v. JTI-MacDonald Corp., [2007] 2 S.C.R. 610, para. 7 (Can.).

100 Id. at para. 141.

101 See id. at para. 72.

102 Id. at para. 38.

103 See id. at paras. 9-10.

104 In Lorillard, for example, neither the majority opinion nor the dissent included any reference to the industry's history of misconduct. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

105 JTI-MacDonald Corp., 2 S.C.R. at para. 61.

106 See id. at para. 100.

107 Id. at para. 102.

108 Id. at para. 68.

109 Id. at para. 47.

110 Id.

111 Id. at para. 135.

112 Id. at para. 136.

113 Id. at para. 137.

114 Canada and most other nations in the world are parties to the FCTC, but the United States is not. Parties to the WHO Framework Convention on Tobacco Control, WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL, http://www.who.int/fctc/signatories_parties/en/index.html (last updated Dec. 7, 2012). The FCTC states that parties should adopt warning labels that cover at least fifty percent of product packaging. WORLD HEALTH ORG., WHO FRAMEWORK CONVENTION ON TOBACCO CONTROL 10 (2005).

115 Canada (Att’y Gen.) v. JTI-MacDonald Corp., [2007] 2 S.C.R. 610, para. 138 (Can.).

116 See Sarah Schmidt, Government Asks Court to Toss out Challenge over Cigarette Pack Warnings, OTTAWA CITIZEN, Nov. 21, 2012, http://www.ottawacitizen.com/health/story.html?id=7586355.

117 See id.

118 See JTI-MacDonald Corp., 2 S.C.R. at paras. 28, 121.

119 See, e.g., id.

120 See id. at paras. 36-37 (Oakes test).

121 See id. at para. 34 (“When the Charter was adopted, the question arose of whether the free expression guarantee extended to commercial expression by corporations. This Court ruled that it did … . The Court premised this conclusion on an examination of the values protected by the free expression guarantee: individual self-fulfilment, truth seeking and democratic participation … . It noted that commercial speech may be useful in giving consumers information about products and providing a basis for consumer purchasing decisions … .”).

122 When the focus is kept on the interest in promoting consumer autonomy, it also follows that commercial speech targeting children may be more easily restricted than commercial speech directed towards adults. This is the approach that Canada's Supreme Court has taken. See, e.g., id. at para. 94 (noting that “the vulnerability of the young may justify measures that privilege them over adults in matters of free expression”); Irwin Toy, Ltd. v. Quebec (Att’y Gen.), [1989] 1 S.C.R. 927 (Can.) (upholding Quebec's restrictions on marketing directed at children under the age of thirteen).

123 RJR-MacDonald Inc. v. Canada (Att’y Gen.), [1995] 3 S.C.R. 199, 281 (Can.) (La Forest, J., dissenting).

124 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 763-64 (1976) (“When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.”).

125 Id. at 763-65.

126 See, e.g., 44 Liquormart v. Rhode Island, 517 U.S. 484, 503 (1996) (writing that restrictions on truthful commercial speech “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth” (quoting Linmark Assocs. v. Willingboro, 431 U.S. 85, 97 (1977))).

127 See, e.g., RJR-MacDonald Inc., 3 S.C.R. at 343.

128 See id.

129 Id.

130 Id.

131 See id.

132 Canada (Att’y Gen.) v. JTI-MacDonald Corp., [2007] 2 S.C.R. 610, paras. 96-116 (Can.).

133 Id. at para. 102.

134 Hanson, Jon D. & Kysar, Douglas A., Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1445 (1999)Google Scholar.

135 Indeed, the tobacco industry was largely built on a foundation of this type of image-only advertising: “Cleverly targeted ad campaigns, such as the now-famous Marlboro Man, succeeded in creating demand for Marlboros and other cigarettes by conveying to smokers a sense of independence, autonomy, and sexuality. Not surprisingly, consumers soon associated cigarettes with desirable, abstract traits of the sort that they almost certainly would not have perceived absent effective advertising.” See id. at 1471 (detailing the tobacco industry's history of misleading advertisements).

136 JTI-MacDonald Corp., 2 S.C.R. at paras. 96-116.

137 See id. at para. 9.

138 See id. at para. 68.

139 Lorillard v. Reilly, 533 U.S. 525, 529 (2001) (emphasis added).

140 To the extent Judge Leon discussed this issue, he asserted that warnings were “crafted to evoke a strong emotional response” and not to inform consumers. See R.J. Reynolds Tobacco Co. v. FDA, 845 F. Supp. 2d 266, 272 (D.D.C. 2012).

141 See R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1222 (D.C. Cir. 2012) (concluding by quoting Sorrell's admonition that because the government “finds expression too persuasive does not permit it to quiet the speech or to burden its messengers” (quoting Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670 (2011))).

142 WV Ass’n of Club Owners & Fraternal Servs. v. Musgrave, 553 F.3d 292 (4th Cir. 2009).

143 See id. at 307.

144 Id.

145 R.J. Reynolds Tobacco Co., 696 F.3d at 1219 n.13 (“[W]e are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences.”); see also Nat’l Ass’n of Tobacco Outlets, Inc. v. City of Worcester, 851 F. Supp. 2d 311, 316 (D. Mass. 2012) (“[Plaintiffs] contend that the City has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making decisions of which the City disapproves. I agree.”).

146 Piety, Tamara R., “A Necessary Cost of Freedom?” The Incoherence of Sorrell v. IMS, 64 ALA. L. REV. 1, 6 (2012)Google Scholar.

147 See id. at 5.

148 On the one hand, Citizens United focused on the political realm—an area in which First Amendment rights are more strictly protected—so the holding may not easily translate over to the commercial realm. See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). On the other hand, if the “corporate personhood” element of Citizens United is emphasized, it is unclear why corporations should be treated less as “persons” in the commercial, as opposed to the political, realm.

149 SHINER, supra note 56, at 114.

150 This concern was also evident in the Virginia Pharmacy decision. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 770 (1976).