Five Senators Demand Unconstitutional Restrictions on E-Cigarette Ads—for the Children


Blu e-cigarette ad

Today five senators—Barbara Boxer (D-Calif.), Richard Durbin (D-Ill.), Tom Harkin (D-Iowa), Richard Blumenthal (D-Conn.), and Edward Markey (D-Mass.)—introduced "legislation to protect children from e-cigarettes." To be more precise, the bill aims to protect children from speech about e-cigarettes. The Protecting Children from Electronic Cigarette Advertising Act authorizes the Federal Trade Commission to "determine what constitutes marketing e-cigarettes to children" and "work with states attorneys general" to enforce a ban on such marketing. Boxer et al. seem to have their own definition of marketing e-cigarettes to children, and it is pretty broad:

Senator Durbin said, "E-cigarette makers are adopting the deplorable marketing tactics once used by tobacco companies to entice children and teenagers into using their addictive product. With fruit and candy flavors and glossy celebrity ads, e-cigarettes makers are undeniably targeting young people. Unfortunately, it's working. We must take action now to prevent a new generation from walking down the dangerous path towards nicotine addiction."…

"It is troubling that manufacturers of e-cigarettes—some of whom also make traditional cigarettes—are attempting to establish a new generation of nicotine addicts through aggressive marketing that often uses cartoons and sponsorship of music festivals and sporting events," said Senator Harkin….

"Tobacco companies advertising e-cigarettes—with flavors like bubblegum and strawberry—are clearly targeting young people with the intent of creating a new generation of smokers, and those that argue otherwise are being callously disingenuous," Senator Blumenthal said.

Despite claims from some e-cigarette makers that they do not market their products to children, e-cigarette manufacturers have adopted marketing practices similar to those long used by the tobacco industry to market regular cigarettes to youth—including flavoring their products in candy or fruit flavors that appeal to children, and using marketing materials featuring cartoon characters reminiscent of those used to market traditional cigarettes to children in previous decades.

I gather that if Boxer et al. were imposing restrictions on e-cigarette marketing, rather than leaving that task to the FTC, the rules would look something like this:

1. Do not mention fruit or candy flavors.

2. Do not hire celebrities to appear in ads.

3. Do not run "glossy" ads; matte finish is acceptable.

4. Do not use cartoon characters.

5. Do not sponsor music festivals or sporting events.

There is zero chance that such speech restrictions would be upheld by the courts—yes, even with the avowed goal of "protecting children." In the 2001 case Lorillard Tobacco v. Reilly, the Supreme Court rejected much more modest restrictions on outdoor tobacco ads that were likewise aimed at protecting impressionable minors from exposure to messages about adult products. In 2012 the U.S. Court of Appeals for the 6th Circuit cited that decision when it overturned the advertising restrictions imposed by the Family Smoking Prevention and Tobacco Control Act. That law banned the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships. "Although the government can show a substantial interest in alleviating the effects of tobacco advertising on juvenile consumers," the 6th Circuit said, "the provision of the Act banning the use of color and graphics in tobacco advertising is vastly overbroad."

Why was that rule "vastly overbroad"? Because it unreasonably interfered with legitimate communication between tobacco companies and their adult customers. Likewise the rules that Boxer et al. are demanding. The notion that fruit flavors, celebrities, glossy ads, cartoon characters, music, and sporting events appeal only to minors is clearly unsupportable. At the risk of being deemed "callously disingenuous" by Richard Blumenthal, I would like to point out that many adults (particularly young women) like the fruity flavors he finds so offensive, and they should not be denied their preference based on the possibility that it is shared by people younger than 18. For similar reasons, advertising of adult products should not be restricted to techniques that could not possibly interest a 17-year-old. If given free rein, this impulse to shield "young people" from every bad influence would reduce adults to the status of children.