The Tobacco Products Control Act was ruled unconstitutional for infringing on free speech. Since that ruling, tobacco marketers could have launchedtheir marketing campaigns. Wisely, they chose to wait.
Wisely, because tobacco marketers must understand that whatever regulations are imposed against them could broaden to include other products or services down the line. And because marketers closely watch regulations against any kind of advertising around the world, such laws could have global implications.
This is a commercial free speech issue, but it reminds us of another free speech case that went to the U.S. Supreme Court.
Fred Friendly wrote about the case in his book "Minnesota Rag." His thesis was that precedent-setting issues often involve unpopular examples. In the Minnesota case, a disreputable newspaper lost a libel suit in the lower courts because more respected newspapers wouldn't come to its defense, although the paper prevailed before the Supreme Court. More recently, in the late 1980s, mainstream magazines were slow to file "friend of the court" briefs for Soldier of Fortune because they didn't want to be associated with that mercenary-oriented magazine.
Marketers may not want to fight for the right of tobacco companies to advertise. But if they choose not to, they eventually may discover the regulators coming after them and their freedom to advertise.