First Amendment Advertising Is a Critical Component Term Paper

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First Amendment

Advertising is a critical component of any business. Many forms of advertising are protected by the First Amendment, yet "the Supreme Court for many years took the view that commercial speech -- speech that proposes an economic transaction -- was not protected by the First Amendment" (Linder 2012). However, in Virginia State Board of Pharmacy (1976), the Court ruled against a law prohibiting advertising the prices of prescription drugs. But this decision was based not upon the rights of the corporation to free speech, but the rights of consumers to "receive information" to enable them to make decisions (Linder 2012).

However, the Court has also found in favor of attempts to limit the constitutional freedoms of businesses to engage in unfettered speech, such as in the case of bans upon cigarette advertisements directed towards minors or on television to the general public. In 1971, all television advertisements directed towards minors were banned and in 2001 the U.S. Supreme Court, in Lorillard Tobacco Company v. Reilly found in favor of states' rights to limit all cigarette advertising directed towards minors. In the majority decision it noted "the First Amendment also constrains state efforts to limit advertising of tobacco products, because so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information" although "to the extent that federal law and the First Amendment do not prohibit state action, States and localities remain free to combat the problem of underage tobacco use by appropriate means" (Lorillard Tobacco Company v. Reilly, 2012, Exploring Constitutional Conflicts).

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Recently, there has been a great deal of agitation to promote similar laws banning junk food advertising to children.

Businesses are also constrained in terms of the product claims they can make. For example, the Dietary Supplement Health and Education Act (DSHEA) (1994) prohibit businesses from making unsubstantiated claims about the ability of a supplement to treat disease. Also, "the FDA has issued cease-and-desist warnings about foods that bear structure-function claims. In recent years, it has simply stated that manufacturers are responsible for ensuring that the claims are 'truthful and not misleading'" regarding foods (Nestle 2010). All of this is important for a business to remember given that the underlying principle of consumers to receive accurate information is resonant in all of these examples. Even though businesses can take a certain amount of 'poetic license' when advertising their products (there would be no way to challenge every restaurant that advertised itself as selling 'the world's best pizza'….....

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