said by Crookshanks:One wonders if anybody has attempted to challenge this on 1st Amendment grounds. "Congress shall make no law...."
OMG! That's it! I'd probably call up RJR or Phillip Morris legal council and drop them that hit. I bet they never thought of that!
Yes they've challenged the restrictions. Sometimes the challenges work. Other times they don't.
Just as yelling fire in a crowed theater isn't protected speech, courts have found that there is legitimate grounds for limiting the promotion of products that have overwhelming evidence of being harmful. And more recently, further restrictions have been upheld with the "think of the children" reasoning. The restrictions do have limits as tobacco companies have successfully challenged new regulations (so far) showing graphic anti-smoking images on products.
Also, the initial ban wasn't an outright ban on electronic advertising. It originally only required stations that showed paid tobacco ads to donate equal time of anti-smoking public service announcements. Stations didn't want to donate their time so they "voluntarily" stopped showing tobacco ads. Laws were then passed banning electronic ads but just shifted the ads to print, billboards, and other non-electronic advertising.
As part of the tobacco settlements in the 90s, among other things, in exchange for restricting further advertisements and sponsorships, they got off the hook for tort liability in civil lawsuits. Because the settlement was a civil settlement with the federal government and state attorney generals, and not a criminal lawsuit, first amendment grounds did not apply.
