This analysis remains the key to determining appropriate tobacco advertising restrictions. Under the Central Hudson analysis, restrictions on tobacco advertising and marketing are acceptable under the First Amendment. There are two parts to this test. First, the restrictions seek to prevent the tobacco industry from continuing illegal efforts to market its products to children. The First Amendment does not protect commercial speech that is related to an illegal transaction.
Most smokers initiate tobacco use as children.
Non-smoking adults rarely take up tobacco use. Because of these facts, as a necessity, the tobacco industry s advertising is targeted to children. But today we no longer have to base our case for advertising restrictions on the effect of the industry s ads. The industry s own documents demonstrate that they deliberately targeted their marketing campaigns to children, spending billions of dollars each year to addict children. Second, the restrictions seek to end all advertising considered misleading.