Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada

Abstract

In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA’s) proposed graphic health warnings for cigarette packages violated tobacco companies’ First Amendment rights. In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries’ experiences by stating (first at oral argument and then in his decision) that “none of [those countries] afford First Amendment protections like those found in our Constitution.”While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. Indeed, several other countries apply “strikingly similar” legal tests when reviewing restrictions on speech (and on commercial speech in particular). Thus, the statement that other countries do not “afford First Amendment protections like those found in our Constitution” is an oversimplification.