The New Anti-Tobacco Legislation, Sports Events and Commercial Speech

The Family Smoking Prevention and Tobacco Control Act signed by President Obama's earlier this week contains provisions that should be of more than passing interest to those involving sports sponsorship. As has been widely reported, the legislation (found in 111 P.L. 31, 123 Stat. 1776) asserts Food and Drug Administration jurisdiction over tobacco products and will finally give that agency the power to regulate tobacco products. Additionally, and significantly for those in the sports industries, the legislation prohibits tobacco-related sponsorships of sports and entertainment events.

This legislation serves as a crowning achievement of the efforts by anti-smoking advocates to stop individuals, notably teenagers, from starting the habit. These advocates can feel justly proud of their accomplishment. A great deal of this legislation makes sense, especially giving the Food and Drug Administration jurisdiction over tobacco and the increase in warnings to be found on such products. However, as someone who lauds the goals of a smoke-free America, some of the advertising restrictions may be constitutionally suspect and will likely be challenged.

The law codifies previous bans on outdoor advertising within 1,000 feet of schools and playgrounds and certain print advertising to black-and-white text. In a limitation directly involving sports, the legislation prohibits manufacturers, distributors, or retailers from distributing or causing to be distributed any free samples of smokeless tobacco "to a sports team or entertainment group;" or "at any football, basketball, baseball, soccer, or hockey event or any other sporting or entertainment event determined by the Secretary [of Health and Human Services] to be covered by this subparagraph."(sec. 102a)

In its introduction, the legislation notes that "[t]hrough advertisements during and sponsorship of sporting events, tobacco has become strongly associated with sports and has become portrayed as an integral part of sports and the healthy lifestyle associated with rigorous sporting activity."

While tobacco company sponsorship has gradually decreased for major sporting events, a ban on sponsorships could jeopardize the viability of smaller events in jeopardy. Such a limitation, along with the billboard advertising restrictions -- could also affect the commercial speech rights and may be unconstitutional.

I come to this conclusion with great reluctance, because in the past, I advocated a ban on tobacco advertising (see SUNY v. Fox -- The Dawn of a New Age of Commercial Speech Regulation of Tobacco and Alcohol, 9 Cardozo Arts & Entertainment Law Journal 61 (1990). But since then, commercial speech protection has increased because the Supreme Court has applied the prevailing standard with greater scrutiny. That standard, known as the Central Hudson test is a complex variant of the “intermediate” scrutiny test found in time, place and manner restriction cases and requires that the government’s interest in regulating the commercial speech must be “substantial;” the regulation “directly advances the governmental interest asserted;” and the regulation “is not more extensive than is necessary to serve that interest.” In recent years, the courts have questioned governmental regulation of commercial speech involving liquor regulations and billboards, applying the last two prongs of the test was heightened scrutiny. In a case closely on point, the court, in 2001, concluded in Lorillard v. Reilly that a Massachusetts regulation banning "outdoor" advertising for tobacco products as the law failed the fourth part of the Central Hudson test. Some members of the court expressed interest in scrapping Central Hudson in favor of a strict scrutiny test. I wonder if the sponsorship ban in this legislation would be able to survive the "intermediate scrutiny-plus" standard of Central Hudson as applied by the courts over the last decade.

Constitutional challenges to portions of this law are likely and the sports industry should pay attention.