New FDA Tobacco Regulations Raise Constitutional Questions

New FDA Tobacco Regulations Raise Constitutional Questions
June 1, 1997

The Food and Drug Administration (FDA) recently proposed tobacco advertising regulations that, in light of a recent Supreme Court decision, raise far-reaching Constitutional questions.

Among other things, the FDA has proposed banning all outdoor tobacco advertisements within 1,000 feet of any playground and elementary or secondary school, and the limiting of all other advertising to black text on a white background. While the proposed regulation is primarily directed against the tobacco industry, advertisers and store owners are just as likely to be affected by the FDA’s action, says a recent report by the Washington-based National Center for Public Policy Research (NCPPR).

The Clinton administration is widely expected to make its legal case for the proposal citing the Commerce Clause of the U.S. Constitution. Using this line of argument, administration lawyers are likely to say that advertisements affect interstate commerce by affecting students attending schools; the students themselves are part of interstate commerce in that they are being trained to participate in the nation’s interstate commerce, and their mental and physical condition, in turn, will affect interstate commerce.

Yet in a recent Supreme Court case, United States v. Lopez, the government made similar arguments regarding the Gun-Free School Zone Act of 1990 (which banned guns within 1,000 feet of any school), contending that “the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment.” The Supreme Court, however, rejected the government’s position, with Chief Justice Rehnquist arguing, in effect, that the Gun-Free Schools Act was unconstitutional because it exceed the federal government’s authority to regulate.

The Lopez ruling could also apply to the FDA’s tobacco advertisement proposal, the NCPPR points out. “If the FDA and Congress can regulate tobacco advertisements “within 1,000 feet of schools,” what prevents them from regulating any other type of advertisement or written text, picture, graphic, book, magazine, or any visual image deemed a threat to the well-being of American students?” the NCPPR asks.

PF: The full text of the NCPPR report is available from PolicyFax. Call 847/202-4888 and request document #????????