Here's a breakdown of the research done on tobacco product advertising with cases like Commonwealth Brands, Discount Tobacco City, and more.

1. ADVERTISING HEALTH
REGULATIONS OF GLAMORIZED ADS
Makinzie Larson
melarson@unomaha.edu

2. Brief history
■ Food and Drug Administration (FDA) is a consumer protection agency in the United
States federal government.The FDA is responsible for protecting the public health by
ensuring the safety of drugs, medical devices, food, cosmetics, and more
■ Commonwealth Brands, a United States tobacco company was launched in 1993 and
94
■ Imperial Brands PLC, an international tobacco company, acquired Commonwealth
Brands
■ Commonwealth Brands Inc. v. United States (2010) resulted in a ban on statements on
tobacco product packaging that implied FDA regulation of tobacco products makes
those products less harmful
■ Commonwealth argued the enforcement of the FamilySmoking Prevention andTobacco
Control Act violated their rights under Free Speech and Due Process in terms of their
packaging and advertising.

3. Linkage toTextbook Chapter
Chapter 8- Regulating Advertising
■ Kerr discusses commercial speech and its relation to the First Amendment, deceptive
advertising, regulating advertising, etc.
■ Though traditional advertising has morphed into modern forms, advertising is still
highly regulated
■ Commercial messages are federally regulated by the FTC, FDA, and SEC
■ Commonwealth dealt mainly with the FDA, rather than the FTC, due to the fact the
most of the concerns in the case resolved around the packaging of the tobacco
product and the statements of relative safety from tobacco companies

4. ■ The FDA was the agency in focus because there are still parts of the case that deal
with deceptive advertising, which FTC is responsible for protecting. “When consumers
see or hear an advertisement, … federal law says that ad must be truthful, not
misleading”
■ The FTC has to enforce truth-in-advertising laws, which has the same standard that
applies to all media.
■ The issue in Commonwealth that relates back to deceptive advertising are the
statements of relative safety that were on the product packaging.
– statements were worded in such a way that made it seem like the FDA said that the
products were safe because there were FDA regulations on tobacco products
Linkage toTextbook Chapter
Chapter 8- Regulating Advertising

5. Recent Case Law
■ In 2009, Congress enacted the FamilySmoking Prevention andTobacco Control Act,
giving the Food and Drug Administration extensive regulatory control over tobacco
– act established law for tobacco companies and their advertisements
■ Commonwealth’s motion was granted to remove two FDA guidelines that 1) limited
the use of color and graphics in advertisements and 2) banned the statements of
relative safety (p. 153).
– After this case, a federal appeals court reversed the decision of the lower court and
1) kept the ban on the statements of relative safety and 2) removed the ban on
continuity programs that tobacco companies implemented to give free items as
rewards for tobacco purchases

6. Recent Case Law
■ DiscountTobacco City & Lottery v. United States (2012)
– Tobacco companies are now: required to have a significant portion of the product’s
packaging reserved for health warnings, restricted from promoting less risk of
disease or harm than others, banned from relative safety statements, no longer
limited to the use of color and graphics for labels and advertising, and allowed to
give free items as rewards for tobacco purchases
■ As of March 28, 2018, no manufacturer/distributor of imported cigarettes or smokeless
tobacco can distribute or sell any item (other than their product) or service that bears
any identification identical to those used for any brand of cigarettes or smokeless
tobacco

7. Law Review Analysis
Anderson Chang (2013)
■ Discusses the FamilySmoking Prevention andTobacco Control Act (2009) and
Commonwealth Brands Inc. v. United States (2010)
■ The FamilySmoking Prevention andTobacco Control Act (2009) was passed under
President BarackObama’s administration.
– “set the scene” and discusses the tobacco industry further in depth.
■ Chang (2013) compares Commonwealth Brands Inc. with similar cases involving
tobacco companies responding to new regulations by filing suits.These companies are
alleging that there’s been a violation of their First Amendment rights

8. ■ discusses “universal health care” (a.k.a.Affordable CareAct) that was instituted by the
Obama Administration and information related to that health care plan
■ does not relate directly back to the Commonwealth Brands Inc.
– mentioned as one of the examples for cases that “have involved intangible assets,”
such as trademarks.
Law Review Analysis
Karl Manheim (2015)

9. Law Review Analysis
Peter Bozzo (2017)
■ reviewed the compelled commercial-speech doctrine and the proposal to reform the
doctrine
■ Ambiguously mentions DiscountTobacco City & Lottery (2012)
■ made observations about Australian new rules for tobacco products that required
distributors to print textual and graphic warnings on cigarette packs

10. ■ writes about the Central Hudson test approach to compelled commercial speech cases
– Distinguishing Prohibitions from Disclosures
– Justifying Interpretive Choices
– Assessing Accuracy
– Determining Relevance
– Evaluating the FDA’s Graphic Images
■ Should the statement be “cigarettes cause cancer” or “cigarettes sometimes cause
cancer”?
Law Review Analysis
Peter Bozzo (2017)

11. Statute Law # 1
First Amendment: Free Speech
■ Commonwealth was not based on an advertising issue per se, but rather, the issues
that come with a tobacco product.
■ Commonwealth was focused on the advertising on packaging of tobacco itself, but also
included how advertisements elsewhere were regulated.

12. Statute Law #2
Central Hudson Test
■ State cannot regulate speech that poses no danger
■ Central Hudson test was created to determine the extent of First Amendment
protection for commercial speech
– Four Step Process:
1. whether the advertising that is regulated is misleading and whether it concerns a
legal product or service
2. whether the asserted governmental interest is substantial
3. whether the regulation directly advances the asserted governmental interest
4. whether the regulation is “not more exclusive than necessary” to serve the
governmental interest

13. ■ Commonwealth: government argued that the regulation satisfies the Central Hudson
test
– Congress has a substantial interest in reducing tobacco use by minors and the
provision is written in such a way that specifically addresses the particular
advertising and promotion practices that appeal to youth
■ LorillardTobacco Co. v. Reilly: petitioners challenged state regulations on outdoor
tobacco advertising and urged the Court to not use the Central Hudson test
– concluded that the regulations involving advertising of cigars and smokeless
tobacco failed the [Central Hudson] test as more extensive than necessary to
advance the government’s interest in preventing underage tobacco use
Statute Law #2
Central Hudson Test

14. Statute Law #2
Central Hudson test
■ The outdoor advertising regulations prohibiting smokeless tobacco or cigar
advertising within 1,000 feet of a school or playground violate the First Amendment,
but satisfy Central Hudson’s third step by directly advancing the governmental interest
to justify the regulations

15. Statute #3
Family Smoking Prevention andTobacco Control Act (2009)
■ Commonwealth Brands argued that the enforcement of the Act violated their rights
under free speech and due process

16. Conclusions
■ tremendous concern for tobacco advertising influencing under-age children through
promotion practices that are known to appeal a youth target
■ packaging is required to have warning messages about health concerns
■ Further questions to ask:
– What regulation requirements are necessary to place on advertisements?
– Other than having outdoor advertisements out of a 1,000-foot radius of any school or
playground, are there any other restrictions on where tobacco product advertisements
can be placed (for print, internet, social, outdoor, etc.)
– The difference between “normal” advertising and advertising for companies that are
considered to be a public health safety issue.
■ Some aspects of advertising practices may be okay for a non-public health safety concern
company to use, but for tobacco companies and other similar industries may be regulated
against those practices.