Tobacco Advertising and Freedom of Speech

To the Editor: In response to repeated US Supreme Court decisions that have struck down attempts to regulate tobacco advertising, Dr Bayer and colleagues¹ advocate a strategy of counteradvertising coordinated by the Centers for Disease Control and Prevention. They suggest that this campaign could be funded by an excise tax that would raise approximately 20% each year of what the tobacco industry spends to promote its products.² They also propose that 50% of each print advertisement be composed of health warnings and that all cigarette packs contain a graphic picture of pathology caused by smoking.

While Bayer et al discuss this reactive role for Congress (eg, sponsoring counteradvertising), they do not describe what Congress should do to eradicate tobacco from American society. Such measures might include banning all advertising, creating "adults only" retail outlets, or stigmatizing smoking through countermarketing and restrictions on smoking in public places.

For Congress to initiate such policies, there must be a shift from treating tobacco products as products that can be legally made, promoted, and sold everywhere by private corporations to those that cannot. Clearly, corporations, which are not mentioned in the US Constitution, do not have an inherent right to produce and promote toxic products. In apparent agreement with this view, a former Food and Drug Administration (FDA) Commissioner has now concluded that the public health would be better served if Congress were to charter a not-for-profit corporation to manufacture and sell tobacco products.³ To accomplish this goal, I have proposed a Toxic-Tobacco Law.⁴ Although litigious and regulatory battles against the tobacco industry have been important elements in the war to reduce the morbidity and mortality caused by tobacco, I believe that it is now time to establish legislative strategy to eradicate tobacco use.