Information Regulation

A government aiming to discourage what it perceives as unhealthy or unsafe behavior is not likely to be satisfied with the influence of its own messages and may seek to regulate communication by others within the bounds of the First Amendment, which protects freedom of speech. This can be done in two ways. First, the government may require individuals or organizations to convey the government's desired message. Laws requiring product manufacturers to include information on or with their products have become a standard feature of health and safety regulation. In recent years, mandatory package warnings have been utilized as a means of informing consumers about the dangers of tobacco and, more recently, of alcohol use. Second, government may ban communication of messages that it regards as undesirable. For example, laws banning false or misleading advertising are common, but government may choose to go a step further—to suppress a message because it is thought to encourage unhealthy or socially disapproved drug, alcohol, or tobacco-using behaviors. Examples include the federal ban on broadcast advertising of cigarettes and state laws that ban alcohol advertising. Public-health advocates have urged the federal government to prohibit all forms of tobacco advertising. Whether such prohibitions actually affect the level of consumption (as opposed to product choice) remains controversial. The FDA's 1996 Tobacco Rule, which was invalidated by the Supreme Court in 2000, would have restricted the advertising of tobacco products to a text-only format, and would also have banned other forms of promotional activity that are thought to make use of tobacco products attractive to children and adolescents. The tobacco companies agreed to abide by some of these marketing restrictions in the Master Settlement Agreement executed in connection with the suit brought by the attorney generals of these states.

Proposals have also been made to move beyond advertising into the area of entertainment programming, eliminating messages that portray smoking and drinking in an attractive way. Clearly, such initiatives would raise serious constitutional questions concerning free speech.

Governments have also occasionally attempted to purge the environment of messages that are thought to encourage illicit drug use. For example, one provision of the Model Drug Paraphernalia Act (drafted by the federal drug enforcement agency as a model for states to enact) specifically bans paraphernalia advertising. In 1973, the Federal Communications Commission (FCC) threatened to revoke the licenses of radio stations whose lyrics were thought to encourage illicit drug use.

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