Restricting Tobacco Advertising and Promotions: Dealing with Legal Obstacles

Advertising Restictions, Displays/Display Ban, Health Warnings, Licensing, Pharmacies, Policy Advocacy, Preemption, Price Promotions, Stores Near Schools, Tobacco21
In a new article in The Journal of Law, Medicine & Ethics, entitled “Regulating Tobacco Product Advertising and Promotions in the Retail Environment: A Roadmap for States and Localities,” authors Lange, Hoefges & Ribisl discuss legal obstacles to various strategies for reducing youth tobacco use initiation and outline point of sale interventions for localities and states to consider.

*edit: The free full-text of this article is now available*

Attempts to restrict point of sale advertising and promotion may face the litigious tendencies of the tobacco industry, the Supreme Court’s “stringent use of the First Amendment to protect commercial speech against government regulation,” and the challenge of preemption.
However, there are strategies that can effectively reduce youth initiation and are likely to avoid legal challenges. For instance, solutions that do not involve restricting commercial speech include: Other policies that state and local governments may want to pursue in order to avoid triggering legal challenges include:
  • Restricting the redemption of coupons and other price-reduction tactics, as in the case of Providence, RI and New York City.
  • Requiring POS health warnings or cessation information that is clearly attributed to the government. To avoid preemption entirely, these health warning requirements can focus on non-cigarette tobacco products.
  • Ban advertising and promotions near schools and other youth-concentrated places during times youth are more likely to be exposed to retail advertising (i.e. before school, after school, during school lunch, or during school vacations). Learn more about policy solutions restricting tobacco advertising and promotions.
  • Limit tobacco product displays to adult-only stores or to adult-only portions of stores, restrict the size of tobacco brand displays (e.g. to allow only one package of each tobacco product for sale to be displayed), or cap the total amount of display space allowed in a store (e.g. power walls).
The authors recommend these best practices when considering any restrictions on tobacco advertising:
  1. Consider the implications of the First Amendment and preemption. For preemption, consider both FCLAA (which only applies to cigarette advertising and promotion) and CSETHEA (which only applies to smokeless tobacco products), federal preemption of state law, and state preemption of local laws.
  2. Be sure to document and provide evidence that shows how effective the proposed regulation would be in reducing youth tobacco use and initiation, and be ready to show that you considered other solutions that were less restrictive of speech.
  3. Use government speech to influence the retail environment. Consider using government-sponsored social marketing campaigns or requiring tobacco retailers to post public health warnings as a requirement for participating in a tobacco retailer licensing program. Another option is to create a government-sponsored social marketing campaign focused on the health harms of using tobacco products.
  4. Clearly identify government interests at stake and how the proposed advertising restriction would directly advance those interests, but also demonstrate that the proposed restrictions are not more extensive than necessary to do so.
As always, consult legal experts before you pursue any policy. The content on this site and associated resources are no substitute for actual legal advice. Attempts to restrict advertising or promotions may face legal challenges related to the commercial speech clause of the First Amendment and the commerce clause.  The following resources, developed by the Tobacco Control Legal Consortium and the Center for Public Health & Tobacco Policy, can help you understand how a proposed policy may be viewed by the courts: