Free Speech vs Public Health
Tobacco advertising presents various legal issues centering on the idea of individual rights such as free speech in advertising and the right to use or sell a harmful product. From a legal standpoint, the creation of laws which limit or deter the use and sales of tobacco are driven by public health and safety concerns. As a result of these concerns, the freedom to use or sell tobacco becomes a controversial legal issue that is mired in laws based on balancing individual rights with public health.
Advertising of tobacco began in early 1929 by “Lucky Strike”. Between that time and the 1950’s there was a growing public concern over the negative health effects of tobacco. In 1950, the first investigation into the health hazards of smoking led to a 1953 report that linked smoking with cancer. On the basis of this report, the Federal Trade Commission banned tobacco companies from making advertising claims of good effects from smoking (Case Study, 2004). This was the first step in regulating the tobacco industry and also the first legal recognition of tobacco being a public health issue. Since 1955, many laws have been passed in an effort to balance individual freedom with public health concerns over tobacco.
As a result of becoming a public health concern laws and policies could be made that supported public safety. For example, in 1964, the Surgeon General declared that cigarette smoking was a large cause of cancer (Case Study, 2004). This announcement furthered the idea that tobacco was a public health issue and led to mandatory health warnings placed on all cigarette packaging.
The controversy that exists with tobacco laws is a controversy steeped in freedom of speech and freedom to use tobacco as one see’s fit. Many of the opponents of tobacco restrictions view laws that inhibit the sale and use of tobacco as infringements on personal freedom. This argument has been answered in two ways legally. The first legal answer is that tobacco advertising restrictions are not an infringement on freedom of speech because they enforce truthful advertising (Case Study, 2004). The second legal answer is that while there are many laws which deter tobacco use there are no laws which completely prohibit the product. When one looks at the many different laws it is easy to see that the legal system has tried to balance the issue of public safety with individual freedom. According to the CDC (1998), every state in the country has enacted some form of tobacco restriction. All of these legal measures are in the form of protecting public health and center on smoke-free indoor air, minors’ access to tobacco, tobacco advertising, and tobacco taxes. The CDC acknowledges tobacco as a public health issue and this basis for restrictions:
Although individually focused strategies [legal] to prevent and reduce tobacco use remain important, social change and population-based environmental interventions have become the overriding focus of tobacco-control initiatives. In particular, developing and implementing public health policies are a central component of tobacco-control efforts (CDC, 1999).
The view that tobacco is a public health issue redefines the way that the law handles the product. Because it is a dangerous substance, legal restrictions are not considered infringements on freedom because they are enacted to protect the public. This view culminated in the “Multi State Master Settlement Agreement” in which cigarettes companies agreed to give million dollars to state governments every year in order to support the cost of smoking related illnesses and campaigns to quit smoking. This agreement also banned the use of Cartoon characters and traditional promotion strategies such as mail advertising, sample advertising, use of billboards etc… The agreement also requires the tobacco companies to not target youth in any of their advertisements (Master Settlement Agreement, 1998).
While there is some controversy today over the right to restrict tobacco sales and advertising the defining of the product as a public health problem essentially allows for laws of restriction. Because the law is seeking to protect the public safety this overrides individual freedoms the same as restrictions placed on other areas of freedom such as drinking and driving (Schmalleger, 2012). The balancing of public safety and individual freedom is an ongoing struggle between individual rights and public safety advocates.
Case Study. (2004). Tobacco Under Fire case study. (2004). Pdf. CSE Press Release.
CDC. (1999). State laws on tobacco control — united states, 1998. Surveillance Summaries, 48, 21–62.
Master Settlement Agreement (1998) Available at http://ag.ca.gov/tobacco/pdf/1msa.pdf.
Schmalleger, Frank. Criminal Justice, A Brief Introduction Ninth Edition. New Jersey: Prentice Hall, 2012. Print.
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