regulation. An example can be found in a recent federal appeals court case regarding the new tobacco control law requiring cigarette packs to include large graphic health warnings issued by the FDA. In selecting nine images that would effectively convey the negative health effects of smoking, the FDA relied on evidence, including international studies, showing that graphic warnings cause people to think more about quitting, as well as an FDA consumer study focused on the salience measures reported for a set of 36 proposed images. The appeals court struck down the FDA’s chosen images, interpreting Supreme Court precedent as requiring that the FDA quantify “with statistical precision” how much the graphic warnings would reduce smoking rates.

Even under such stringent standards, policy makers might succeed if they considered their stated goals, Graff said. If the government cannot show that a particular regulation will reduce childhood obesity rates, for example, it may be able to show that the regulation will protect children’s privacy or some aspect of their psychological well-being. Scientists studying the impact of contemporary food marketing on children could make a major contribution by identifying and explaining the types of “upstream” harms caused by this marketing. Researchers also could try to influence courts’ perspective on evidence by publicizing the need to take a risk factors approach to complex, multicausal problems such as childhood obesity.

Nonexpressive Business Activities Versus Protected Speech

The fourth challenge involves determining what types of commercial products and activities fall under the protective umbrella of the First Amendment. In recent decades, industry advocates have endeavored to characterize nonexpressive business practices as protected speech. For example, the new federal tobacco control law limits where tobacco samples can be distributed so as to ensure that an addictive, deadly product does not end up in the hands of children. One court viewed this as a simple restriction on where a product may be circulated in commerce, but another found that a tobacco sampling regulation must be treated with greater suspicion as a government limitation on protected commercial speech.

The Supreme Court has recently indicated a shift toward applying stringent First Amendment review to what would appear to be ordinary business regulations. Still, the question of which commercial practices count as protected speech remains far from settled, and Graff urged that policy makers not be dissuaded from addressing food marketing simply because companies may raise First Amendment objections. In addition, corporate free speech rights probably will not be implicated in zoning restrictions on the location of chain restaurants, in laws requiring different sizes of a beverage product to have the same per ounce price, in laws setting minimum



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