A recent study in the Nicotine & Tobacco Research journal confirms that the tobacco industry sends discount cigarette coupons to non-smokers in the USA and that some of those receiving the coupons become smokers. The study concludes that its findings support more restrictive policies to curtail the use of tobacco product discount coupons because of their possible impact on prompting smoking initiation, reducing cessation, and increasing health disparities. But the study does not consider two more fundamental questions.
1. Given the enormous harms caused by smoking, including premature death, can it possibly be ethical or morally appropriate for a business to deliver discount coupons or other cigarette advertising or promotions directly to nonsmokers?
2. Given the U.S. Food & Drug Administration’s extensive tobacco control authorities including the power to restrict tobacco product advertising and other marketing, is there any public health, ethical, or legal justification for the agency’s failure to prohibit businesses from delivering cigarette coupons or other advertising directly to nonsmokers?
Although the second question requires some First Amendment analysis, the answer to both questions is no.
Any Ethical Justification for Cigarette Ads to Nonsmokers?
Because cigarettes are inherently and inescapably harmful and deadly to smokers and to exposed nonusers there cannot be any public health justification for tobacco company efforts to encourage nonsmokers to begin smoking – or for FDA to continue allowing tobacco companies to do so.
The enormous health (and economic) harms caused by smoking also make any possible ethical or moral justification unlikely if not impossible.
The only possible ethical or moral justifications for businesses advertising or otherwise promoting cigarettes and smoking (or for FDA allowing them to do so) would likely hinge on the fact that tens of millions of already-addicted smokers rely on currently legal cigarettes to feed their addiction. But any such addiction-based justification for advertising to existing smokers (if it exists) cannot provide any moral or ethical justification for advertising cigarettes directly to nonsmokers, who have no addiction to feed and will certainly be harmed if they begin smoking.
Some argue that adult nonsmokers have some ethical right to choose to smoke (despite the absence of any constitutional or legal basis for any such right in the USA). But given all the serious smoking harms to nonusers, including children in smokers’ households (not to mention the harms to the economy caused by smoking), it is not clear that adults actually have any such ethical right. Moreover, most adult smokers do not choose to do so but are addicted, and most smokers want to quit and try to do so. In any case, any ethical adult right to choose to smoke would not make it ethical for tobacco businesses to actively encourage any nonsmokers to make that choice.
Because of the massive harms caused by smoking to users, exposed others, and society as a whole, it is also possible that almost any effective measures to prevent and reduce smoking harms is ethically viable.
So there does not appear to be any public health, moral, or ethical justification for any tobacco company activities that encourage nonsmokers to smoke, or for FDA not issuing new rules to ensure that the companies do not directly engage in any such activities (such as sending coupons or other advertising directly to nonsmokers).
It is possible that FDA’s inaction in this area might be ethically justified by the agency implementing other stronger tobacco control rules, instead. But FDA has not implemented any new rule that would significantly reduce smoking since the Tobacco Control Act provided FDA with extraordinary powers to do so in 2009.
That leaves only the possibility that legal obstacles might excuse FDA for not prohibiting tobacco businesses from delivering coupons or other cigarette advertising directly to nonsmokers.
Any Legal Obstacles to Prohibiting Cigarette Advertising to Nonsmokers?
Tthe Tobacco Control Act gives FDA direct authority to restrict tobacco advertising and promotions whenever doing so is “appropriate for the protection of the public health” and to the “full extent permitted by the First Amendment to the Constitution.” [Sec. 906(d)(1), 21 U.S.C. 387f(d)(1)] Because of the signficant health harms and risks caused by direct cigarette advertising to nonsmokers, prohibiting such advertising is certainly “appropriate to protect the public health.” But under currently applicable Supreme Court rulings, following the 4-part test set out in the Supreme Court’s 1980 Central Hudson ruling, such a prohibition on advertising to legal adult customers might not fit within First Amendment constraints if the government could secure the substantial government interests the prohibition would directly advance without restricting commercial speech as much.
At least one U.S. District Court and one U.S. Appellate Court have rejected First Amendment challenges (and other legal challenges) to local laws prohibiting all coupons offering free or discounted tobacco products. Put somewhat simply, the rulings found that the coupon bans were constitutional because they were pricing restrictions, not commercial speech restrictions. But prohibiting businesses from sending any cigarette advertising at all to nonsmokers would clearly go beyond just restricting price and would leave businesses with no way to communicate directly to nonsmokers who are potential legal adult customers about the cigarettes the businesses manufacture or sell.
Strong arguments can be made, however, that forbidding any cigarette advertising sent directly to nonsmoking adults would still pass the evolving Central Hudson First Amendment test. Besides the fact that such bans would directly promote a substantial government interest (by reducing initiation among nonsmokers), they would not impede the ability of the tobacco companies to communicate with their current smoking customers. And the tobacco businesses could still reach nonsmokers through indirect advertising, such as magazine ads and ads at retail outlets.
Moreover, any constitutional right tobacco companies might have to advertise cigarettes to adult nonsmokers is not particularly important or significant to the companies because the vast majority of their sales are to already-addicted smokers, and the vast majority of the tobacco companies’ new customers come from initiation among youth (and there is no constitutional right to advertise cigarettes to youth). Nor is the ability to receive any such cigarette advertising important to adult nonsmokers. Because the vast majority of smoking starts during youth, it is also clear that the vast majority of non-smoking adults have no interest in smoking or in receiving related advertising.
In addition, the availability of other measures to prevent initiation by nonsmokers that do not restrict commercial speech or restrict it less should be irrelevant to the application of the Central Hudson test and any related First Amendment analysis to any ban on advertising directly to nonsmokers. Because the government has a substantial interest in minimizing smoking harms and costs as quickly and completely as possible, it needs to use all available tools that can work effectively to help accomplish that goal until it is secured, including measures that reasonably restrict commercial speech as well as those that do not. Issuing other tobacco control measures, by themselves, would not prevent and reduce smoking harms as quickly and sharply as implementing them with a ban on direct advertising to nonsmokers, as well.
Nevertheless, if FDA (or a state or local government) issued a rule prohibiting businesses from sending coupons or other cigarette advertising directly to nonsmokers, and the tobacco industry had the gall to attack its constitutionality, it is not clear how the courts would rule. The scope of commercial speech rights continues to evolve, and the Supreme Court has recently shown a significant pro-corporation slant.
Making It Easier to Ban Cigarette Advertising to Non-Smokers By First Prohibiting Cigarette Sales to Nonsmokers
An FDA rule prohibiting the delivery of coupons or other cigarette advertising directly to nonsmokers could readily comply with any court’s application of First Amendment constraints if the rule also established that cigarettes (and, ideally, other smoked tobacco products) may be legally sold only to current adult smokers. FDA has clear statutory authority to implement such a partial sales ban, and it would not face any First Amendment constraints because, as a sales restriction, it would not restrict any advertising or other commercial speech. But the partial sales ban would make it clear that the only legal customers for cigarette businesses are current adult smokers; and businesses have no First Amendment rights to advertise to anyone other than their legal customers. Accordingly, a new rule that permitted cigarette sales only to current adult smokers would eliminate any legal basis for bringing First Amendment challenges against the rule’s concurrent ban on delivering cigarette advertising directly to nonsmokers.
Permitting cigarette sales only to current adult smokers might sound odd or impractical. But it could be implemented by a rule establishing the restriction and requiring only that cigarette-selling businesses not sell to anyone other than verified adults who state that they are a current smoker (e.g., by signing a statement on the business’s sale receipt or clicking on a check-out screen). Cheating by nonsmokers would certainly be easy, but it is unlikely that many would have the motivation to do so. Moreover, the rule would send a powerful new negative message about smoking and would prevent at least some nonsmokers from trying to purchase cigarettes. Most importantly, it would sharply reduce the scope of the First Amendment rights the tobacco companies have been using aggressively for decades to prevent, weaken, and delay effective government measures to require them to advertise their deadly products more ethically and responsibly.
Building on available technologies to prevent delivering tobacco products or ads to kids, it would be relatively easy for cigarette companies to confirm, before making any delivery, that any planned recipient of its coupons or direct-to-consumer advertising was not just an adult but also a self-confirmed current smoker. Given their primary goal of maximizing profits, however, it is unlikely, that the tobacco companies will do that on their own, despite all the ethical, moral, and public health reasons that they should. But those same ethical, moral, and public health reasons call on FDA to take action quickly to require the cigarette companies to stop all cigarette advertising and coupons delivered directly to nonsmokers, and FDA has the legal authority to do so within applicable First Amendment constraints.
Whether the White House and OMB would prevent FDA from issuing any such rule is another matter.
But instead of relying on this Administration to implement new FDA tobacco control rules, state and local governments could take action, themselves. In particular, state and local governments could prohibit the delivery of cigarettes or other smoked tobacco product coupons or advertising directly to youth or to adult non-smokers within their own borders. To make it easier to defend those restrictions against First Amendment challenges, the state and local governments could also prohibit the sale of cigarettes and other smoked tobacco products to anyone within their borders other than verified adults who also identify themselves as being regular or addicted smokers.
Eric N. Lindblom, Director, Tobacco Control and Food & Drug Law
O’Neill Institute for National and Global Health Law, Georgetown Law
enl27@law.georgetown.edu
