Congress passed legislation on June 12 that places tobacco under the purview of the FDA. The bill, H.R. 1256/S. 982, was sent to President Obama, who announced that he would sign it, but the signing ceremony has been announced. The New York Times reported last Sunday that one aspect of the legislation -- the reimplementation of a 1996 regulation that restricts tobacco advertising within 1000' of schools and limits certain tobacco advertising and labelling to black text on a white background. It seems likely that the tobacco advertising regulation will be challenged on free speech grounds. The Congressional Research Service issued a report analyzing H.R. 1256/S. 982 suggesting that the 1996 advertising rules are unconstitutional. The Supreme Court in Lorillard Tobacco
Co. v. Reilly (2001) decided that the same regulation-- restricting tobacco ads near schools did not meet the four-part test for deciding the constitutionality of commercial speech regulation set out in its earlier decision in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980).
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