Lorillard Tobacco Co. v Reilly is the latest
in a series of Supreme Court cases striking down public health regulation
of advertising as a violation of the First Amendment. In its decision, the
Supreme Court significantly reduced the scope of constitutionally acceptable
forms of regulation of tobacco advertising and created an almost insoluble
dilemma for public health authorities. Control over advertising, along with
taxes and restrictions on smoking in public settings, plays an important role
in the public health response to tobacco. Those committed to reducing the
patterns of cigarette-related morbidity and mortality should broaden their
advertising-related strategies and consider the role that greater disclosure
of the health harms of tobacco can have on reducing consumption. Toward this
end, we propose a comprehensive system of taxation and regulation designed
to increase public appreciation and comprehension of the health risks of cigarettes.
First, we consider a tax to be levied on tobacco advertising and promotion
or, as an alternative, a new excise tax, the proceeds of which would be used
exclusively to fund a Centers for Disease Control and Prevention–directed
national antitobacco campaign. Second, all print advertising should be required
to carry public health warnings equivalent to 50% of the space devoted to
the advertisement. Third, manufacturers should be required to devote one full
side of cigarette packages to graphic pictorials displaying the dangers of
smoking. The tobacco industry would no doubt respond by declaring such efforts
an unwarranted burden, an example of constitutionally suspect compelled speech.
However, this would be a battle worth engaging, because it might have an impact
on tobacco-related morbidity and mortality in the United States.
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