This document examines recent developments in commercial speech and tobacco regulation. It provides a brief history of the Central Hudson test for determining First Amendment protection of commercial speech. It then discusses recent court cases involving tobacco advertising, such as Altria Group v. Good, which addressed whether the Labeling Act preempted fraud claims against light cigarette labels. The document also outlines relevant statutes like the FTC and Tobacco Control Acts. It analyzes FDA regulations around e-cigarettes and whether prohibiting health claims inhibits harm reduction. The conclusion discusses the challenge of balancing free speech and public health, and questions around long-term impacts of alternatives to traditional tobacco.

1. An Examination of Recent
Developments inCommercial
Speech andTobacco
Regulation
By Elizabeth Bauman

2. Brief History
 The Central Hudson test (1980), U.S. Supreme Court Justice Lewis
Powell clearly stated a test that would formally determine the
extent of First Amendment protection as it relates to commercial
speech. It applies only to the facts of a case and unfolds like this…
 Step One: It asks whether the advertising that is regulated is
misleading, and whether it concerns a legal product or service.
 StepTwo: It asks whether the asserted governmental interest is
substantial, which means the government must show a substantial
interest in protecting the health, safety and morals of the public.
 StepThree: It asks whether the regulation directly advances the
asserted governmental interest.
 Step Four: It asks whether the regulation is “not more extensive
than necessary” to serve the governmental interest.
 FederalTrade Commission’s “reasonable consumer” standard
This means their standard is based on whether a product’s packaging
or advertising would be deceptive or misleading based on the effect
on a reasonable consumer.

3. RecentCase
Law
 Altria Group, Inc. v. Good, et al. (2008):The Altria Group was sued
by its light cigarette smokers and attempted to argue that the
LabelingAct pre-empted a state-law fraud claim.
 The ones who sued the AltriaGroup claimed the advertisers knew
their claims of “less tar” and “less nicotine” were untrue.
 National Association ofTobacco Outlets v. City of Providence (2013)
 Price Ordinance : Restrict the City's tobacco and cigarette retailers
from reducing prices on tobacco products by means of coupons and
certain multi-pack discounts
 Flavor Ordinance: Restrict sales of certain flavored tobacco products
other than cigarettes

4. Statute Law
 FederalTrade Commission Act
 Section 12- Covers the dissemination of false advertisements.
 Section 13- Covers the power of the FTC whenever the regulatory
agency believes in the dissemination of false advertising.
 Family Smoking Prevention andTobacco Control Act (2009)
This act gave the FDA extensive regulatory control over
tobacco.
 Lanham Act (1946) attempts to balance rights for individuals or
businesses harmed by false or deceptive advertising

5. Law Review
Analysis
Regulatory Obstacles to Harm Reduction:The Case of
Smoking
 Main Focus: to examine the involvement of FDA regulation when
it comes to e-cigarettes and how alternatives to other traditional
tobacco products inhibit the potential life-saving qualities.
“…retailers may neither claim that their products are less
dangerous than tobacco cigarettes nor inform consumers
about the potential health benefits of switching from
smoking to vaping without first obtaining permission from
the FDA” (Adler, 2017, p. 744).

6. Conclusions
 Interpretation:The challenge of striking balance between free
speech in commercial advertising and the tobacco industry is only
going to get harder due to continuing developments including e-
cigarettes, vaping, and the legalization of marijuana.
 Limitations: Some believe the FDA regulations on these e-cigs
and other “safe” alternatives inhibits their life-saving potential.
 Future Research:
 Much is still unknown about the long-term health effects of e-
cigarettes.
 Some say e-cigarettes may not even fall under the umbrella of
tobacco products.
 What do FDA regulations and commercial speech look like for the
current and future legalization of marijuana?

7. References
Adler, Jonathan H. (2017). Regulatory Obstacles to Harm Reduction:The Case of Smoking. New
York UniversityJournal of Law & Liberty 11, 712-753.
AltriaGroup, Inc. v.Good, et al., 55 U.S. 70 (2008).
Central HudsonGas & ElectricCo. v. Public ServiceCommission of NewYork, 447 U.S. 557
(1980).
Family Smoking Prevention andTobacco Control Act of 2009, 21 U.S. Code § 387a
FederalTrade CommissionAct of 1914, 15 U.S.C. §§ 41-58.
Kerr, Robert L. (2018). RegulatingAdvertising, inW.Wat Hopkins, Communication and the
Law, 2018 Edition (pp. 223-255, at 225). Northport, AL:Vision Press.
Langvardt,ArlenW. (2014).TobaccoAdvertising and the FirstAmendment: Striking the Right
Balance. Wm. & Mary Bus. L. Rev., 334-412.
Lanham Act of 1946, 15 U.S.C. §§ 1051.
National Association ofTobaccoOutlets v.City of Providence, 731 F.3d 71 (2013).
U.S. Food and DrugAdministration. (2016).The facts on the FDA’s new tobacco rule. U.S.
Department of Health and HumanServices. Retrieved from
https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm506676.htm
FederalTrade Commission. (2018). FederalTrade Commission. Retrieved from
https://www.ftc.gov/