First Amendment Challenges to Product-Display-Restrictions

Knopf, Ilana

Wednesday, August 15, 2012: 3:00 PM

3501A (Kansas City Convention Center)

Ms. Ilana Knopf, J.D. , New England Law | Boston, Center for Public Health & Tobacco Policy, Boston, MA

Prof. Micah Berman, J.D. , New England Law | Boston, Center for Public Health and Tobacco Policy, Boston, MA

Learning Objectives

At the conclusion of this presentation attendees will be able to:

1. Describe a proposed law that would require tobacco products to be kept out of sight in non-adult-only retail establishments. 2. Understand the Central Hudson test that courts use to evaluate the constitutionality of restrictions on commercial speech. 3. Explain the arguments that state or local governments could use to establish that a restriction on the display of tobacco products complies with the Central Hudson test.

Cross Cutting Program Area(s): Tobacco Regulation and Tobacco Control Policies

Audience:

Tobacco control policy advocates, educators, program officers; local legislators, legislative and legal staff.

Key Points:

Tobacco display restrictions are effective at reducing tobacco consumption and currently being considered in the US. Approximately ten countries around the world have prohibited the display of tobacco products in retail stores open to minors, and tobacco control programs in several U.S. states are now encouraging the adoption of similar policies.

If a display restriction policy is adopted in a U.S. jurisdiction, it is highly likely to be challenged in court on First Amendment grounds. There are strong arguments to support the constitutionality of proposed display restrictions. The session will discuss the four prongs of the Central Hudson test used to evaluate restriction on commercial speech and review how a state or local government might consider responding to such a legal challenge. Presenters have analyzed relevant caselaw and literature and will walk participants through the legal arguments that support the constitutionality of proposed display restrictions (including arguments that have not been raised in defense of prior First Amendment challenges to tobacco control laws).

We present drafting recommendations relevant to a potential legal challenge. Presenters have extensive relevant experience.

Educational Experience: See below.

Benefits:

Tobacco control policy advocates, educators and program directors will be better equipped to present a display restriction as a legislative option, address related concerns and serve as a resource. Local and state legislators and their staff will benefit from the drafting recommendations and discussion of possible responses to the First Amendment challenges.