Today five senators—Barbara Boxer
(D-Calif.), Richard Durbin (D-Ill.), Tom Harkin (D-Iowa), Richard
Blumenthal (D-Conn.), and Edward Markey (D-Mass.)—introduced
“legislation to protect children from e-cigarettes.” To be more
precise, the bill aims to protect children from speech about
e-cigarettes. The Protecting Children from Electronic
Cigarette Advertising Act authorizes the Federal Trade
Commission to “determine what constitutes marketing e-cigarettes to
children” and “work with states attorneys general” to enforce a ban
on such marketing. Boxer et al. seem to have their own definition
of marketing e-cigarettes to children, and it is pretty broad:
Senator Durbin said, “E-cigarette makers are adopting the
deplorable marketing tactics once used by tobacco companies to
entice children and teenagers into using their addictive product.
With fruit and candy flavors and glossy celebrity ads, e-cigarettes
makers are undeniably targeting young people. Unfortunately, it’s
working. We must take action now to prevent a new generation from
walking down the dangerous path towards nicotine addiction.”…“It is troubling that manufacturers of e-cigarettes—some of whom
also make traditional cigarettes—are attempting to establish a new
generation of nicotine addicts through aggressive marketing that
often uses cartoons and sponsorship of music festivals and sporting
events,” said Senator Harkin….“Tobacco companies advertising e-cigarettes—with flavors like
bubblegum and strawberry—are clearly targeting young people with
the intent of creating a new generation of smokers, and those that
argue otherwise are being callously disingenuous,” Senator
Blumenthal said.Despite claims from some e-cigarette makers that they do not
market their products to children, e-cigarette manufacturers have
adopted marketing practices similar to those long used by the
tobacco industry to market regular cigarettes to youth—including
flavoring their products in candy or fruit flavors that appeal to
children, and using marketing materials featuring cartoon
characters reminiscent of those used to market traditional
cigarettes to children in previous decades.
I gather that if Boxer et al. were imposing restrictions on
e-cigarette marketing, rather than leaving that task to the FTC,
the rules would look something like this:
1. Do not mention fruit or candy flavors.
2. Do not hire celebrities to appear in ads.
3. Do not run “glossy” ads; matte finish is acceptable.
4. Do not use cartoon characters.
5. Do not sponsor music festivals or sporting events.
There is zero chance that such speech restrictions would be
upheld by the courts—yes, even with the avowed goal of “protecting
children.” In the 2001 case Lorillard
Tobacco v. Reilly, the Supreme Court rejected much
more modest restrictions on outdoor tobacco ads that were likewise
aimed at protecting impressionable minors from exposure to messages
about adult products. In 2012 the U.S. Court of Appeals for the 6th
Circuit cited that decision when it
overturned the advertising restrictions imposed by the Family
Smoking Prevention and Tobacco Control Act. That law banned the use
of color or pictures in outdoor ads, indoor ads (except those
in adult-only businesses), and print ads carried by
publications with significant underage readerships. “Although
the government can show a substantial interest in alleviating the
effects of tobacco advertising on juvenile consumers,” the 6th
Circuit said, “the provision of the Act banning the use of color
and graphics in tobacco advertising is vastly overbroad.”
Why was that rule “vastly overbroad”? Because it unreasonably
interfered with legitimate communication between tobacco companies
and their adult customers. Likewise the rules that Boxer et al. are
demanding. The notion that fruit flavors, celebrities, glossy ads,
cartoon characters, music, and sporting events appeal only to
minors is clearly unsupportable. At the risk of being deemed
“callously disingenuous” by Richard Blumenthal, I would like to
point out that many adults (particularly young women)
like the fruity flavors he finds so offensive, and
they should not be denied their preference based on the possibility
that it is shared by people younger than 18. For similar reasons,
advertising of adult products should not be restricted to
techniques that could not possibly interest a 17-year-old. If
given free rein, this impulse to shield “young people” from every
bad influence would reduce adults to the status of children.
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