With the enactment of the Family Smoking Prevention and Tobacco Control Act of 2009, Congress launched a major expansion of its regulatory efforts regarding tobacco advertising and promotion. The Act restricts advertising in various ways, featuring a requirement for updated textual versions of health warnings long required for cigarette packages, as well as a requirement that cigarette advertisements must be accompanied by prominently displayed color graphic images to be designed by the U.S. Food and Drug Administration (FDA).
The Act’s advertising restrictions and the color graphics requirement have been challenged on First Amendment grounds, as has an FDA regulation setting forth graphic images that tobacco companies were to use. A federal court of appeals struck down the FDA regulation and sent the agency back to the drawing board, but another federal court of appeals upheld the color graphics requirement and most of the advertising restrictions in the statute. This Article analyzes the decisions in light of the various, sometimes inconsistent strains of First Amendment principles that the Supreme Court has adopted, explores what Congress and the FDA should be able to do in regulating tobacco advertising and promotion without violating the First Amendment, and recommends analyses for use in the event that the Supreme Court agrees to decide a tobacco advertising case.