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.

About the Author

Clark Rector, EVP of Government Affairs, AAF

Clark RectorAs executive vice president-government affairs, Clark Rector oversees and directs the lobbying efforts of the American Advertising Federation’s grassroots network of 40,000 advertising professionals in some 200 local advertising clubs and federations nationwide. Together, they have defeated ad tax proposals and other threats to advertising in Congress, nearly every state and numerous cities and counties. In his role as chief public policy advocate for the Federation, Rector meets with lawmakers and regulators to educate them about advertising and represent the industry’s position on important legislative and regulatory matters.  He has testified for the AAF before the U.S. Senate and Federal Trade Commission, as well as numerous state legislatures and city governments.

Prior to joining the AAF in 1988, Rector spent two years on Capitol Hill as a legislative assistant for Congressman Tom Luken of Ohio. He also spent three years working in local television in Austin, Texas. Rector is a graduate of the University of Texas and received a Master of Arts in Communication Studies from the University of Iowa.