Is branding a 1st Amendment right?

This interesting Neuromarketing post on a proposed Australian law to eviscerate the branding value of cigarette packaging is a doozy.

Separate from the inherent interest in the notion that the pack may be far more powerful than the cigarette (and I like both Why We Buy and Call of the Mall by Paco Underhill as modest introductions to some of these ideas) is the question that doesn’t occur to the author but matters a lot to us here.

Could the federal government impose similar restrictions on cigarette manufacturers in the US? We know some labeling requirements are permitted (the Surgeon General’s warning), but what about the rest? Is the design of the package constitutionally protected speech? What “message” is there, or is the “expression” enough?

I’m not a commercial speech guru, but I’m sure some of you are: what’s the story on limits on packaging regulation, and has it changed because of Citizens United?

And for the non-lawyers, would requiring bland packaging be an acceptable compromise to (1) allow smokers to continue smoking, i.e., not outlawing them entirely, (2) reduce uptake by new consumers, i.e., people who are now our children, and (3) allow adults the opportunity to make bad decisions? And if we can tax the price of a pack as much as we want (and do), why not do this too, or instead? After all, if we’re not going to outlaw cigarettes, what can we do that works to reduce smoking?

Leave a Comment