Tobacco Advertising

As tobacco companies have learned, when making statements to the public about products, there are limits to the free speech protections afforded under the First Amendment. Tobacco companies engage in a form of speech every day. For example, their advertising and marketing campaigns to sell their products represent a classic form of commercial speech. Through labeling, tobacco companies make statements about the nature and effects of their products. During the 1990s, more than forty states filed suit against major tobacco companies for several forms of misconduct, some involving speech.

Lawsuits alleged that tobacco companies engaged in false advertising

These lawsuits, coordinated by the states’ attorneys general, alleged first and foremost that the tobacco companies had engaged in false advertising by neither disclosing information about health effects that could result from the regular use of tobacco products nor discussing the potentially addictive nature of tobacco products. The attorneys general also challenged certain advertising campaigns, such as the Marlboro Man and Joe Camel. They alleged that the latter— which featured a cartoon camel character living a decadent life of wealth and fame in the company of beautiful women—targeted minors.

In settling with the various states in the so-called Master Settlement Agreement, the tobacco companies made a series of commitments, including the abandonment of advertising campaigns like Joe Camel and the production of public service announcements on the potentially hazardous nature of smoking. Through the settlement, the states achieved an outcome that effectively prohibited tobacco companies from undertaking certain forms of speech while simultaneously compelling the companies to undertake certain other forms of speech.

Continued litigation may result in additional government regulation of marketing efforts

Although the major tobacco companies, by and large, have reached settlements with the states’ attorneys general, they continue to face class action lawsuits brought by people claiming to have been harmed by their own as well as their family members’ smoking. The current spate of such lawsuits suggests that tobacco companies will have to defend against further litigation over the statements that they make to the public about their products. Depending on the outcome of this litigation, the companies may face additional government regulation of their marketing efforts or at a minimum face monetary consequences from private litigants as a result of the content of their speech.

Recent court decisions underscore the uncertainty of the legal landscape of tobacco litigation. Several courts have had to consider the extent to which plaintiffs can recover from tobacco companies through punitive damages. Also under dispute is the issue of whether tobacco companies misrepresented the potential health effects of their “light” and “lowtar” products. Although corporations, such as tobacco companies, enjoy a certain amount of freedom of speech, the extent of this freedom is not as broad as the freedom enjoyed by individual citizens. The irony is that tobacco companies may face these greater restrictions in an era when the Supreme Court affords greater free speech protections for commercial speech. For example, in Lorillard Tobacco Co.v. Reilly (2001) the Court struck down various restrictions on cigar and smokeless tobacco products on First Amendment commercial free speech grounds.

This article was originally published in 2009. Keith R. Wesolowski, Esq. is an attorney licensed to practice in New York, Tennessee, and the District of Columbia.  He maintains a corporate practice that advises businesses, charities, and churches on their legal rights and responsibilities.  Mr. Wesolowski also co-authored an Amicus Curiae brief to the United States Supreme Court on behalf of certain Buddhist Temples in the case of Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).