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02/09/98 MON 09:37 FAX
5
008
Inc. V. Rhode Island, 116 S.Ct. 1495, 1505 n.7 (1996); Florida Bar, 515 S.Ct.
at - ("Under Central Hudson. the government may freely regulate commercial speech that
concerns unlawful activity, or is misleading."); Central Hudson, 447 U.S. at 563-64. The
FDA regulations are directed at, and tailored to, restricting the flow of commercial speech
to minors, a group of persons who may not legally purchase the product being advertised.
Recent evidence indicates, however, that tobacco manufacturers have targeted
advertisements at an underage audience; and in any event, these advertisements are
perceived by minors as offers or inducements to buy and use tobacco products. Thus,
such advertising "relates to" and encourages illegal transactions.
We have not argued that this point, by itself, permits the FDA to ban tobacco
advertising altogether, because we recognize that such advertising also relates to lawful
activity: the purchase of tobacco products by adults. The incidental effect of the
restrictions on advertising to adults does require Central Hudson analysis. It is critical to
that analysis, however, that the FDA has tailored its regulations in a manner directly
related to the "unlawful" aspect of tobacco advertising, and whom the advertisers have no
right to reach. The FDA's restrictions are aimed at the Government's wholly legitimate
and compelling interest in curbing minors' use of tobacco products, rather than at
restricting adults' rights to receive information about their consumer choices.
The Interest in Discouraging Youths from Using Tobacco Products Is Substantial.
There can be no doubt that the Government has a sufficiently substantial interest in
discouraging the use of tobacco products by minors. As the Supreme Court has
7
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"ocrText": "02/09/98 MON 09:37 FAX\n5\n008\nInc. V. Rhode Island, 116 S.Ct. 1495, 1505 n.7 (1996); Florida Bar, 515 S.Ct.\nat - (\"Under Central Hudson. the government may freely regulate commercial speech that\nconcerns unlawful activity, or is misleading.\"); Central Hudson, 447 U.S. at 563-64. The\nFDA regulations are directed at, and tailored to, restricting the flow of commercial speech\nto minors, a group of persons who may not legally purchase the product being advertised.\nRecent evidence indicates, however, that tobacco manufacturers have targeted\nadvertisements at an underage audience; and in any event, these advertisements are\nperceived by minors as offers or inducements to buy and use tobacco products. Thus,\nsuch advertising \"relates to\" and encourages illegal transactions.\nWe have not argued that this point, by itself, permits the FDA to ban tobacco\nadvertising altogether, because we recognize that such advertising also relates to lawful\nactivity: the purchase of tobacco products by adults. The incidental effect of the\nrestrictions on advertising to adults does require Central Hudson analysis. It is critical to\nthat analysis, however, that the FDA has tailored its regulations in a manner directly\nrelated to the \"unlawful\" aspect of tobacco advertising, and whom the advertisers have no\nright to reach. The FDA's restrictions are aimed at the Government's wholly legitimate\nand compelling interest in curbing minors' use of tobacco products, rather than at\nrestricting adults' rights to receive information about their consumer choices.\nThe Interest in Discouraging Youths from Using Tobacco Products Is Substantial.\nThere can be no doubt that the Government has a sufficiently substantial interest in\ndiscouraging the use of tobacco products by minors. As the Supreme Court has\n7"
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