The Family Smoking Prevention and Tobacco Control Act and the First Amendment: why a substantial interest in protecting public health won't save some new restrictions on tobacco advertising.

Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009 with the aim of reducing tobacco-related illnesses and deaths by curbing tobacco's appeal to and use by children and adolescents. Legislators considered provisions of the FSPTCA restricting tobacco advertising and labeling key to realizing the law's intended health benefits. But a lawsuit now before the U.S. Court of Appeals for the Sixth Circuit challenges the tobacco marketing restrictions as impermissible restraints on tobacco companies' commercial speech rights under the First Amendment. This article analyzes the constitutionality of each FSPTCA tobacco advertising and labeling restriction in light of U.S. Supreme Court decisions defining the extent of First Amendment protection for commercial speech, prior efforts to restrict tobacco marketing, and the outcomes of legal challenges to some of the prior marketing restrictions. Several of the FSPTCA tobacco advertising and labeling restrictions were drafted with insufficient accommodations for tobacco companies' First Amendment right to convey and consumers' First Amendment right to receive truthful information about lawful tobacco products and are therefore unconstitutional as currently written.