The constitutionality of the proposed restriction is not free from doubt, since it curtails the freedom of tobacco companies to communicate with young people for any purpose.7 However, the proposal does not ban all communication with minors, and the mere exposure of minors to advertising would not be a violation of the proposed ban. Instead, the restriction bans “targeting” of young people (conduct that is also banned by the MSA when it is explicitly promotional). The committee’s proposal extends the MSA ban to all targeting of youth, based on the presumption that any communications that target young people are highly likely to reflect a promotional motivation. Any legislation seeking to implement this restriction could certainly allow room for a company to prove that a specific communication had a legitimate purpose and did not have the purpose or effect of promoting tobacco use. On the basis of this analysis and on the unique history of tobacco company efforts to promote youth smoking, the committee believes that the proposed restriction would survive a constitutional challenge.
One of the biggest challenges of modern life for parents is to minimize the exposure of their children and impressionable teens to images and messages in the media that encourage or even glorify unhealthy and risky behaviors. Although the values of a free and open society preclude strong measures to cleanse the cultural environment of images and messages that are unfit for children, properly tailored legal restrictions on the time, place, and manner of display of such images and messages are permissible. The fact remains, however, that the authority of the state in this area is limited. These observations highlight the heavy responsibility borne by the entertainment media for formulating and enforcing industry regulations to facilitate parental efforts to protect their children from potentially harmful exposures to images and messages that tend to promote unhealthy (indeed, unlawful) behavior. A recent IOM/National Research Council report on underage drinking reviewed the evidence bearing on depictions and messages encouraging or glorifying drinking and urged stronger industry self-regulation backed up by monitoring of media content by the federal government (IOM/NRC 2004). This committee believes that a similar approach is needed regarding youth exposure to smoking in the entertainment media, especially in the movies.
The scientific literature on smoking in the movies is reviewed by Halpern-Felsher and Cornell in Appendix H, and the following material is drawn