Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada

Published by the American Society of Law, Medicine & Ethics and Boston University School of Law

Manipulative Marketing and the First Amendment

First published in The Georgetown Law Journal

The Faltering Promise of FDA Tobacco Regulation

Congress passed the Tobacco Control Act (TCA) in 2009, giving the FDA the authority to regulate tobacco products for the first time. Ten years later, the promise that the TCA’s enactment would be a transformative moment for public health has not materialized. To the contrary, the FDA’s most notable regulatory effort—requiring graphic warnings on cigarette packages and advertisements—has been struck down in court, and the FDA is now scrambling to address a youth e-cigarette epidemic that caught it off guard. This Article provides a brief review of TCA implementation during the Obama administration, and it reviews the Trump administration’s “comprehensive plan” for nicotine regulation. It concludes with a discussion of the structural obstacles to more robust FDA tobacco regulation