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Given the ways of capitalism and the greed of corporate America, how long will it be before highway billboards, radio and television advertisements, and Internet pop-up ads begin to promote the latest and best in marijuana products? "This bud's for you" will take on a whole new meaning.
The American people have learned that the prohibition of intoxicating liquor only led to the glorification of drinking and criminality. Experience has also shown that education and reasonable regulation has led to a substantial reduction in the use of tobacco products. Both of these substances remain readily available and are widely advertised. What's wrong with this picture?
Even though a society may come to believe the prohibition and criminalization of a product is not the best way to confront the problems it causes, does not mean it should also roll over and allow the product to be promoted. Just because people can legally purchase something does not mean it is necessarily good for them. Products such as alcohol, tobacco and marijuana can become habituating and addicting, causing harm to individuals who are enticed by advertising to crave them.
It may be that one small glass of red wine a day can help reduce the risk of heart disease, or that a couple of tokes of marijuana may relieve the pain of some diseases, encourage the appetite of someone suffering from cancer, or perhaps even prevent cancer. Unrestrained recreational use of these substances will, however, lead to harmful consequences in many people who consume them. While warning labels on cigarette packs and cautions to drink responsibly may provide some benefit, warnings are not as effective as avoiding advertising the product in the first place.
Members of the alcohol industry spend billions of dollars each year in an attempt to secure their market share of the lucrative business. The expenditure exposes young people to thousands of television and magazine ads each year, many of which target this impressionable audience.
Advertising by the tobacco industry exceeds that of the liquor industry, amounting to more than $15 billion per year. The money is ostensibly spent to secure brand and customer loyalty, but it also attracts new users, as older ones die off or learn to stop abusing their bodies with tobacco. With tobacco use killing almost six million people each year, the World Health Organization has called on all countries to ban all forms of tobacco advertising, promotion and sponsorship.
The First Amendment provides the right of free speech, and this right has been extended to corporations that make money supplying these legal, albeit risky and inherently dangerous products. The public also requires truthful and factual information in making decisions regarding the purchase and use of the products. Advertising hype is not designed to supply that need.
Can the public protect itself from being misled by the promotion and advertising of inherently harmful products it chooses to not criminalize? Answering that question requires an understanding of the difference between ideological and commercial speech.
There is a difference between a well-researched and balanced article discussing the benefits of a glass of wine each evening or the medical uses of marijuana, and paid commercial advertising depicting the glamour of drinking or touting a marijuana product that provides the greatest high this side of Colorado. Requiring marijuana products to be sold in plain brown paper bags is not the same as allowing pot to be peddled in a psychedelic package.
As late as 1942, a unanimous Supreme Court ruled that the First Amendment posed no "restraint on Government as respects purely commercial advertising." In doing so, the Court said there was a difference between ideological (harm versus benefits) and commercial (advertising) speech.
The issue was reconsidered by the Court in 1976 regarding a Virginia statute that restricted pharmacies from advertising their prices, as being unprofessional conduct. In overruling the statute, the Court said, "If there is a right to advertise there is a reciprocal right to receive such advertising." The opinion did, however, allow for some circumstances, such as false and deceptive advertising, in which commercial speech could be restricted.
Four years later, the Court expanded on its ruling by finding that commercial speech could be protected "from unwarranted governmental regulation" if it "protects not only the speaker but also assists consumers and furthers the societal interest in the fullest possible dissemination of information."
The Supreme Court went on to decide that Rhode Island could not entirely ban liquor price advertising, nor could the Federal Communications Commission ban casino advertising in states where gambling is legal. The Court left it up to the speaker and the audience to "assess the value of accurate and nonmisleading information about lawful conduct."
The Supreme Court looks to the legislative intent of Congress whenever it reviews the constitutionality of a law. In doing so, the Court starts with a "strong presumption of validity" in favor of the policy judgments that led to the legislation. Thus, it is essential that congressional deliberations justify its choice of policy alternatives, based on evidence it considered.
Given the several sides of the issue, could Congress find it better policy to prohibit the advertising of inherently harmful products, instead of outlawing the actual product? The fact that a deliberate decision is made to deal with a social problem by means other than the criminal justice system could well justify a policy to disallow its being advertised and promoted.