e-Cigarette Advertising and Commercial Free Speech

In the words of former baseball player and philosopher Yogi Berra, “It’s like déjà vu all over again.” California Senator Barbara Boxer (D) has called upon the Federal Trade Commission (FTC) to expedite its study of the e-cigarette industry examining whether their advertising is encouraging children and youth to take up vaping.

Years of experience with other disfavored products leads us to expect that – no matter the results of the study – someone in Congress will likely call for bans or restrictions on e-cigarette advertising. While they will claim to be trying to protect youth, the actual limitations will likely be much broader and ban much advertising aimed at adult and legal consumers.

To be clear, the American Advertising Federation (AAF) has no position on e-cigarettes or what the legal age to buy and use them should be. However, AAF has a strong position on commercial free speech and opposes any effort to ban or restrict the advertising of any legal product or service to legal consumers.

Fortunately for the advertising industry, the U.S. Supreme Court agrees with us and has affirmed that commercial speech is included under the free speech provisions of the First Amendment to the U.S. Constitution.

Simply stated, the Court ruled that the government may only restrict truthful commercial speech if it can show that the restriction is “narrowly tailored” and directly advances a substantial government interest.

The right to ban a product does not give the government the right to ban the speech about the product. Besides, banning the speech will not work. The experience of other countries shows that banning advertising does not lead to a reduction in the consumption of the product.

By all means, the FTC and Congress have the right to study the advertising for these or any other products. But they have the duty to respect and follow the Constitution, including the right of marketers to truthfully advertise legal products and services – no matter how unpopular they may be.

Originally published on AAF.org