FCC Commissioner Wants to Ban E-Cigarette Ads, Because 'Public Interest'

Jessica Rosenworcel overlooks the statutory and constitutional obstacles to her plan.



Jessica Rosenworcel, a member of the Federal Communications Commission, does not like TV and radio ads for e-cigarettes, and she seems to think they can be banned by reinterpreting the 1970 law that prohibited broadcast ads for conventional cigarettes. She is wrong.

"Today you won't see cigarette ads on television," Rosenworcel wrote on Twitter yesterday. "But nothing stops the ads for e-cigarettes, even if they are targeted at kids. The @FCC can help put a stop to this, and I think it should."

Rosenworcel explains how in a USA Today op-ed piece. "We do not need to sit idly by while the electronic equivalent of the Marlboro Man surfaces in new advertising that introduces the next generation to habit-forming tobacco products," she writes. "Congress charged the FCC with upholding the 'public interest' in its oversight of the broadcast industry….As one court recognized long ago, 'the public interest indisputably includes the public health.'"

Rosenworcel seems to be claiming that the FCC's mandate to regulate the airwaves in "the public interest" gives it the authority to impose whatever speech restrictions it thinks will promote "the public health," which is a pretty alarming conjunction of two vague, expansive phrases. As fellow FCC Commissioner Brendan Carr observed on Twitter today, "The FCC does not have a roving mandate to police speech in the name of the 'public interest.'" A little more concretely, Rosenworcel suggests that "we can work with the FDA to ensure that the Department of Justice—which interprets the Public Health Cigarette Smoking Act—does so in a modern way that recognizes the public health crisis from the growth in use of these addictive products."

Leaving aside the "public health" wisdom of suppressing information about products that offer a potentially lifesaving alternative to smoking, Rosenworcel's plan is dubious on both statutory and constitutional grounds. The statute to which she refers says "it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." It defines cigarette as "any roll of tobacco wrapped in paper or in any substance not containing tobacco." Since e-cigarettes contain no tobacco, interpreting the law "in a modern way" evidently means ignoring its plain meaning.

Even if the Justice Department managed that interpretive feat, there is the little matter of the First Amendment, which says "Congress shall make no law…abridging the freedom of speech, or of the press." When Congress enacted the Public Health Cigarette Smoking Act, the Supreme Court was still taking the position that "commercial speech" is not protected by the First Amendment. Hence it is not surprising that a three-judge panel of the U.S. District Court in Washington, D.C., upheld the ban on cigarette advertising in 1971, when six radio companies challenged it. The Supreme Court affirmed that decision without comment in 1972.

Since then, however, the Court has reconsidered the original version of the "commercial speech" doctrine, recognizing that advertising is constitutionally protected. Under the test it laid out in the 1980 case Central Hudson Gas & Electric v. Public Service Commission, restrictions on truthful, nonmisleading advertisements of legal products will be upheld only if they directly advance a substantial government interest and are no more extensive than necessary.

In the 2001 case Lorillard Tobacco v. Reilly, the Court used that test to overturn a Massachusetts ban on tobacco billboards within 1,000 feet of a school or playground. Although the Court deemed preventing underage tobacco consumption a substantial government interest and even accepted the dubious argument that advertising restrictions directly advance that goal, it said the 1,000-foot rule swept too broadly, barring outdoor tobacco advertising from "a substantial portion of Massachusetts' largest cities" and in some places amounting to "nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers."

If Massachusetts legislators' desire to shield children from tobacco ads could not justify a state ban on billboards, it is hard to see how Rosenworcel's desire to shield children from e-cigarette ads could justify a nationwide ban on TV and radio ads. "Censoring lawful speech based on its content?" Commissioner Carr responded on Twitter yesterday. "I'm with the First Amendment. I'm a no."

At a press conference today, Rosenworcel reacted to Carr's pushback by insisting that "all I've done is called for the idea that the FCC, the FTC, and the FDA should come together, look at what laws are on their books, and identify if there are things we can do to assist with…what the FDA Commissioner called a public health crisis." Yes, and her main idea for assisting the FDA involves censoring speech.

Rosenworcel's obliviousness to the constitutional issue is especially striking because she has been quick (and correct) to say the FCC must resist President Trump's suggestion that the commission should use its regulatory powers to punish or suppress speech he does not like. "History won't be kind to silence," she said on CNN in 2017, "and I think it's important for all the commissioners to make clear that they support the First Amendment."

NEXT: Violent Video Games Don't Make Players More Violent IRL

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. FCC or FFS?

  2. Who is putting something into that poor woman’s ass and what are they putting in there?

  3. This should be dubious on constitutional grounds, but we already let the camel’s nose into the tent when we let them ban cigarette ads. In such fashion does an exception swallow a prohibition on government actions.

  4. The greatest deterrent to using e-cigarettes is showing people using e-cigarettes.

      1. This must have more effect on people too young to have seen someone burn themselves or light themselves on fire with a cigarette (or lighter).

        1. How do you light yourself on fire with a lighter or cigarette… without first dousing yourself in gasoline?

      2. Back in the day I used to hide cigarette loads in a co-worker’s cigarettes. Awesome stuff.

  5. Rosenworcel’s obliviousness to the constitutional issue is especially striking because she has been quick (and correct) to say the FCC must resist President Trump’s suggestion that the commission’s regulatory powers should be used to punish or suppress speech he does not like.

    Of course it’s insane to punish or suppress speech somebody else doesn’t like, just as it’s insane to not punish or suppress speech you personally don’t like. What’s the use of having power if you’re expected to wield it in a fair and impartial manner, in some sort of “principled” fashion? If you have to follow the rules, you don’t really have power; power means the rules are whatever you say the rules are.

  6. Do why do they have the authority to ban anything. Their only legitimate function is to regulate frequencies

    1. “Frequency of vaping!”

    2. They’re power to regulate transmission frequencies (and broadcast licenses) allows them leverage to make other demands.

      This all started under FDR who used the new FCC to wield enormous power over radio broadcasters. They all got the message really quick and were very hesitant to criticize FDR or the New Deal.

  7. “We do not need to sit idly by while the electronic equivalent of the Marlboro Man surfaces”

    When did “sit (or stand) idly by” become a thing? It’s almost as bad as “at the end of the day”.

    1. We do not need to sit idly by while the electronic equivalent of the Marlboro Man surfaces

      Fuck that noise! I’m gonna spend two straight days on the couch watching Westworld.

  8. Her Adam’s apple gives Ann Coulter’s something to aspire to.

  9. this obsession with stamping out vaping absolutely confuses me.

    At a minimum, vaping is 95% safer than smoking. That number is likely low buy a factor of 10 or more, but it was the best supported number available when the British health system did their large study of the subject.

    This is a classic example of letting the perfect be the enemy of the good. It seems that everyone is obsessed with preventing people from having any sort of fun if it comes under the category of naughty. Of course, this one is boosted by the strong anti-capitalist streak running through the left at the moment.

    But the bottom line is this: at the moment, cigarettes are still the leading preventable cause of death in the United States. This despite years of decline. Vaping is the best avenue to getting that number as close to zero as possible. So if you are in favor of banning, restricting, or otherwise hindering access to e-cigarettes, you are in favor of killing people.

    1. Yeah, I Remey’d the thread.

  10. Rosenworcel is an Obama holdover. The Swamp is a protected wetland.

    1. That explains the following:

      “Rosenworcel’s obliviousness to the constitutional issue is especially striking because she has been quick (and correct) to say the FCC must resist President Trump’s suggestion that the commission should use its regulatory powers to punish or suppress speech he does not like.”

  11. Idiot (useful)
    Slack-jawed yokel
    Dumb fuck
    Deliberate point-misser
    Censorious shitbag
    Slanderous piece of crap

    Vapes save lives

    1. Reason-based health care saves lives.

      Vaping gets people with poor judgment addicted to strong doses of nicotine.

  12. During 2012-2016, an estimated annual average of 18,100 (5%) reported home structure fires started by smoking materials killed an average of 590 (23%) people annually, injured 1,130 (10%) per year, and caused $476 million in direct property damage (7%) per year.


  13. I have never seen a single TV commercial for an e-cig, although I admit that I don’t watch much TV. Am old enough to remember commercials for cigars and smokeless though which they had until the early 1980s. I wonder how many of these innocent youngsters they claim to want to protect even watch TV.

    1. Kids dont watch TV as you and I know it. They stream tv shows and movies.

      The federal govenrment is so far behind the curve that the dont see the bend.

  14. How is this not a 1A right to run a cigarette commercial?

  15. The FCC’s “Mandate” is a Living Document.


  16. Google paid for every week online work from home 8000 to 10000 dollars.i have received first month $24961 and $35274 in my last month paycheck from Google and i work 3 to 5 hours a day in my spare time easily from home. It’s really user friendly and I’m just so happy that I found out about it..go to this site for more details…

    So I started….>>>>>>>> http://www.GeoSalary.com

Please to post comments

Comments are closed.