On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act (Smoking Prevention Act) into law, authorizing new methods to fight youth smoking. The new law provides the legislative approval necessary for the Food and Drug Administration (FDA) to regulate the tobacco industry. Advertising and marketing restrictions designed to thwart the tobacco industry’s attempts to communicate with American youths are among the new rules and regulations proposed in the Smoking Prevention Act. The new law mimics legislation passed within the European Union (EU), which instituted a complete ban on tobacco advertising in print, radio, and national services media. Although the World Health Organization (WHO) argues that comprehensive bans on advertising—like the one implemented in the EU—are effective means to prevent youth smoking, a major commercial free speech battle looms on the horizon—one that may prove fatal to the Smoking Prevention Act.
This Note will begin with an overview of historical developments leading up to the passage of the Smoking Prevention Act. This Note will then examine the origins of commercial free speech jurisprudence in both the United States and the EU. Next, this Note will analyze the differences in the judicial interpretation of commercial free speech in the United States and the EU, as well as the constitutional difficulties that lie ahead for the Smoking Prevention Act. Finally, this Note will discuss the pros and cons of constitutionally valid strategies—such as higher taxes on cigarettes and clean air requirements—that lawmakers may adopt to achieve the goal of reducing youth smoking rates. . .