[Congressional Record Volume 155, Number 56 (Thursday, April 2, 2009)]
[Extensions of Remarks]
[Page E867]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

                                 ______
                                 

                               speech of

                            HON. LAMAR SMITH

                                of texas

                    in the house of representatives

                        Wednesday, April 1, 2009

  Mr. SMITH of Texas. Mr. Speaker, H.R. 1256 directs the Secretary of 
HHS to promulgate an interim final rule that is identical to the FDA's 
1996 rule, which legal experts from across the political spectrum have 
stated would violate the First Amendment.
  While these experts' views should carry great weight, even more 
persuasive is the fact that the U.S. Supreme Court also has weighed in 
on various provisions of the rule, finding them unconstitutional.
  In Lorillard Tobacco Co. v. Reilly, the U.S. Supreme Court struck 
down a Massachusetts statute that was similar in many ways to the FDA's 
proposed rule. The statute banned outdoor ads within 1,000 feet of 
schools, parks and playgrounds and also restricted point-of-sale 
advertising for tobacco products.
  The Court held that this regulation ran afoul of the test established 
in the Central Hudson case, which defines the protection afforded 
commercial speech under the First Amendment, as it was not sufficiently 
narrowly tailored, and would have disparate impacts from community to 
community.
  The Court then noted that since the Massachusetts statute was based 
on the FDA's rule, the FDA rule would have similar constitutional 
problems.
  As Justice Sandra Day O'Connor wrote for the Court, ``the uniformly 
broad sweep of the geographical limitation demonstrates a lack of 
tailoring.''
  Additionally, the proposed rule in H.R. 1256 would require ads to use 
only black text on a white background. The U.S. Supreme Court found a 
similar provision unconstitutional in Zauderer v. Office of 
Disciplinary Counsel. In that case, dealing with advertising for legal 
services, the Court held that the use of colors and illustrations in 
ads is entitled to the same First Amendment protections given verbal 
commercial speech.
  Justice Byron White, in his opinion for the Court, wrote that 
pictures and illustrations in ads cannot be banned ``simply on the 
strength of the general argument that the visual content of 
advertisements may, under some circumstances, be deceptive or 
manipulative.''
  So there are numerous speech restrictions in this legislation that 
raise serious First Amendment concerns. This will create a swarm of 
lawsuits that will only divert us from trying to develop more effective 
approaches to tobacco use in the United States.
  To include speech restrictions that a broad range of legal experts 
have stated are almost certain to be unconstitutional fatally taints 
this bill.
  I know the bill is well-intentioned but I hope my colleagues will 
support the alternative offered by the gentleman from Indiana, Mr. 
Buyer.

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