Smoking Out Big Tobacco: Can the Family Smoking Prevention and Tobacco Control Act Equip the FDA to Regulate Tobacco Without Infringing on the First Amendment?

Tobacco use is one of the most catastrophic public health issues facing the world today. The recently passed Family Smoking Prevention and Tobacco Control Act (FSPTCA) gives the United States Food and Drug Administration (FDA) unprecedented power to regulate tobacco products. These provisions, however, may unconstitutionally infringe on First Amendment commercial speech under the judicially crafted commercial speech doctrine governed by Central Hudson Gas & Electric Corp. v. Public Service Commission. Indeed, after the FSPTCA¿s passage, several tobacco companies filed suit, arguing that these advertising restrictions violate the First Amendment. If these provisions are not modified to fall within the constitutional confines of Central Hudson, the FSPTCA will be nothing more than an impotent piece of legislation, leaving an overworked FDA to pick up the pieces