Commercial speech law and tobacco marketing: a comparative discussion of the United States and Canada.

I. INTRODUCTIONIn November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA's) proposed graphic health warnings for cigarette packages violated tobacco companies' First Amendment rights.1 In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries ' experiences by stating (first at oral argument and then in his decision) that "none of [those countries] afford First Amendment protections like those found in our Constitution."2While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression.3 Indeed, several other countries apply "strikingly similar" legal tests when reviewing restrictions on speech (and on commercial speech in particular).4 Thus, the statement that other countries do not "afford First Amendment protections like those found in our Constitution " is an oversimplification.5 Rather than ignore how other countries have addressed tensions between freedom of expression and other societal interests (such as public health), a comparative analysis can help enrich our understanding of the First Amendment by introducing new perspectives and doctrinal considerations that may challenge our settled assumptions.6Applying a comparative perspective, this Article will focus on the protection afforded to commercial speech, 7 and to tobacco advertising in particular. For purposes of this Issue, I will focus solely on the example of Canada. Like the United States, Canada has a constitutional provision that protects freedom of speech, and in commercial speech cases it applies a balancing test that is almost identical to the Central Hudson test used by U.S. courts.8 It is important to emphasize, however, that the case of Canada is not unique in these respects. Other countries and jurisdictions-including South Africa,9 Japan,10 and the European Union11-also use Central Hudson-like balancing tests when reviewing restrictions on commercial speech. Each jurisdiction has come to its own conclusions about how to best balance commercial speech rights against the challenge of regulating tobacco marketing. My discussion of Canada's approach is presented here as one example of a broader comparative analysis that could be undertaken.Carefully examining how other countries strike the balance between free expression and public health could lead to a productive reexamination of the First Amendment's commercial speech doctrine and its purpose. In particular, as the example of Canada demonstrates, a comparative discussion can help to reintroduce the interests of the consumer into the debate over commercial expression rights. From the perspective of the consumer, not all commercial speech is equall y valuable, and not all government restrictions on speech infringe upon consumer autonomy. To the contrary, regulations on speech can protect consumers from the deceptive and manipulative marketing of harmful products such as tobacco.II. COMMERCIAL SPEECH & TOBACCO ADVERTISING IN THE UNITED STATESTo make the comparison with Canada, it is first necessary to quickly review how the U.S. Supreme Court has approached commercial speech cases. The First Amendment states, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."12 Although the text is unqualified, suggesting that freedom of speech can never be restricted, the Supreme Court has developed a complex set of First Amendment doctrines that apply different levels of protection to different types of speech. 13 These doctrines-including the commercial speech doctrine-are non-textual judicial creations whose applications vary over time and with changes in the Supreme Court's makeup. …