The Food and Drug Administration Rule Restricting Marketing to Children Does not Violate the First Amendment

August 23, 1996

Washington, DC - The Food and Drug Administration rule restricts those forms of advertising and marketing that have the greatest effect on children. It does not limit advertising to adults nor does it restrict what tobacco manufacturers can say in their advertising. The tobacco industry and some advertisers claim that these restrictions violate the First Amendment. In support of their claim, they assert that tobacco advertising has no effect on children and that if you permit restrictions on tobacco advertising, restrictions on advertising for other products will inevitably follow. Both statements are completely false. There is overwhelming evidence that tobacco advertising makes these products more appealing to children. Further, tobacco and the behavior of the tobacco industry are unique. The Food and Drug Administration rule is entirely consistent with the First Amendment and with Supreme Court decisions interpreting the right of government to restrict commercial speech in order to protect important governmental interests. - It is illegal to sell tobacco products to children. The FDA rule focuses entirely on advertising that makes tobacco products appealing to children. - The FDA rule does not prevent the disclosure of any information in tobacco advertising; it solely eliminates the use of non-informational images, like Joe Camel, whose primary appeal is to children. - The FDA rule comes only after more than 30 years of urging the tobacco industry and the advertising community to voluntarily limit advertising to children -- without results. They continue to advertise blatantly and without regard for the public health. With freedom comes responsibility. - The FDA rule is part of a narrowly tailored, comprehensive approach to reducing tobacco use among our nation’s children that maximizes the use of non-speech mechanisms to reduce tobacco use. In sum, the federal government does have the power to restrict advertising of tobacco products to children after 30 years of permitting the advertising and tobacco industry to police themselves.