This article provides a critical and philosophical assessment of arguments invoked for and against the constitutional protection of commercial expression and the regulation of commercial speech with a focus on the commercialization of unhealthy food products.

This article argues that the decision by the Columbian high court to totally ban the advertising and promotion of tobacco products is sound and could indeed be applied to other types of harmful products.

Obesity is a public health problem in the United States. Experts have identified the regulation of food marketing as a policy strategy to address obesity and poor nutrition. However, the First Amendment can be a barrier to reducing exposure to problematic food marketing. In recent years, courts have become increasingly protective of speech, and particularly of “commercial speech,” or advertising, which can make it more difficult to regulate certain marketing practices.

Heath services come with the promise of confidentiality.1 The ethical mandate to safeguard the confidentiality of personal health information aligns with legal mandates to do the same. Numerous state and federal laws demand one form of health data confidentiality or another, best illustrated by the Health Insurance Portability and Accountability Act.2 In early 2011, the Department of Health and Human Services decided to take a tougher stand against HIPAA violators, utilizing powers created by the Health Information Technology for Economic and (...) Clinical Health Act.3 Ushering in a new era, the U.S. Department of Health and Human Services imposed an unprecedented civil penalty of $4.3 million on Cignet Health of .. (shrink)

This article introduces a symposium that aims to identify and critically assess the legal strategies of the tobacco, alcohol, and food and beverage industries which rest on freedom of expression arguments.

Among the attempts to oppose tobacco control legislation, the tobacco industry has alleged violations of its right to commercial speech. While the disputes that took place in some jurisdictions like the United States (US), Canada, or the European Union (EU) have been already analyzed, much less is known about how, globally, this doctrine has influenced the adoption of tobacco control measures. This article contributes to filling this gap by illustrating how the commercial speech doctrine influenced the (...) negotiations of the Framework Convention on Tobacco Control (FCTC). Moreover, using the Tobacco Control Database of Campaign for Tobacco-Free Kids, it shows that arguments on commercial speech have been used to challenge tobacco control measures in an increasing number of countries. (shrink)

The First Amendment to the US Constitution protects commercial speech from government interference. Commercial speech has been defined by the US Supreme Court as speech that proposes a commercial transaction, such as marketing and labeling. Companies that produce products associated with public health harms, such as alcohol, tobacco, and food, thus have a constitutional right to market these products to consumers. This article will examine the evolution of US law related to the protection of (...) commercial speech, often at the expense of public health. It will then identify outstanding questions related to the commercial speech doctrine and the few remaining avenues available in the United States to regulate commercial speech including the use of government speech and addressing deceptive and misleading commercial speech. (shrink)

This article examines the right to commercial speech that has been read into the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. Restrictions on this right are only permitted if they come within the ambit of the exhaustive list of reasonable restrictions under Article 19(2), under which public health is notably absent. Nevertheless, through the doctrine of harmonious construction, the Indian judiciary have adopted a purposive interpretation to circumvent the omission (...) of public health by carving up freedom of commercial speech into two parts: protected speech which furthers public interest and unprotected speech which is purely commercial. Moreover, the Indian courts have construed these provisions in light of the right to life under Article 21 and the health-related Directive Principles of State Policy under Part IV of the Constitution. This article concludes that judicial creativity in India has consistently been used in favor of protecting public health. (shrink)

Marketing restrictions to promote public health invoke competing rights, including the right to free commercial speech which for-profit entities use to protect their freedom to market products without undue regulation. The right to free commercial speech in South Africa has been developed through case law since the adoption of the first democratic constitution in South Africa in 1996. This article examines the impact of this recent judgment and the lessons for policy makers to ensure effective regulation (...) of marketing practices in South Africa. (shrink)

Raising the issue of corporate moral agency in our examination of the morality of corporate speech is important for two fundamentalreasons. Each reason suggests we exercise caution in conflating corporations and individuals as the law often does. First, raising the issue of corporate moral agency is important to the aim of providing a framework for ethically evaluating corporate speech. It is tempting to proceed as if the nature of corporate speech is self-evident. But this is hardly the (...) case. Corporations are not natural persons, and we mustn’t assume corporate speech is indistinguishable from human speech. Before we can ethically evaluate corporate speech, we must first clarify what corporate speech is. This requires an understanding of the fundamental nature of the corporate entity, including its moral status. Second, raising the issue of corporate moral agency is important if we wish to promotemorally responsible corporate speech. Any diminished moral capacity on the corporation’s part would suggest a core role for the strong legal reinforcement of any ethical aspirations here. In promoting morally responsible corporate speech, ethical injunctions uncoupled from an effective legal regime may hold only limited promise. (shrink)

The Supreme Court of Canada has established that commercial speech is protected under the Canadian Charter of Rights and Freedoms and that commercial speech exists along a continuum of utility and value, which is balanced against objectives such as public health. This article examines jurisprudence to determine when infringements on commercial speech are acceptable, analyzing considerations of evidence, rational connections between policies and outcomes, proportionality, and minimal impairment.

Raising the issue of corporate moral agency in our examination of the morality of corporate speech is important for two fundamentalreasons. Each reason suggests we exercise caution in conflating corporations and individuals as the law often does. First, raising the issue of corporate moral agency is important to the aim of providing a framework for ethically evaluating corporate speech. It is tempting to proceed as if the nature of corporate speech is self-evident. But this is hardly the (...) case. Corporations are not natural persons, and we mustn’t assume corporate speech is indistinguishable from human speech. Before we can ethically evaluate corporate speech, we must first clarify what corporate speech is. This requires an understanding of the fundamental nature of the corporate entity, including its moral status. Second, raising the issue of corporate moral agency is important if we wish to promotemorally responsible corporate speech. Any diminished moral capacity on the corporation’s part would suggest a core role for the strong legal reinforcement of any ethical aspirations here. In promoting morally responsible corporate speech, ethical injunctions uncoupled from an effective legal regime may hold only limited promise. (shrink)

Academics and legal practitioners unanimously agree that two of the main justifications for protecting free speech are autonomy and democracy. Free speech contributes to both the self-development of individuals, as well as to robust democratic processes, and should therefore be protected. This is also the position of the European Court of Human Rights (ECtHR). However, the explicit endorsement of both justifications might give rise to normative questions regarding its protection of commercial speech. While the Court has (...) acknowledged that commercial speech does not contribute significantly to self-development nor democracy, it still awards that form of speech a relatively high level of protection. Moreover, a compelling case can be made suggesting that some forms of commercial speech, such as commercial advertising, might even harm those values. This argument is investigated closely to demonstrate an internal contradiction within ECtHR jurisprudence, between its rhetoric focused on respecting autonomy and democracy, and its practice that might in reality undermine these values. (shrink)

Happy cow messages are instances of commercial speech by the animal industry which, by action or by omission, mislead consumers about the harmful effects that the industry has for nonhuman animals, the environment, or human health. Despite their ubiquity, happy cow messages have received little philosophical scrutiny. This paper aims to call attention to this form of speech, and to make the case for its restriction. To do so we first conceptualize happy cow messages. Second, we argue (...) that they encroach upon individual autonomy in two particularly objectionable ways: by impairing our ability to behave according to our moral convictions, and by thwarting our capacity to identify and reason about our moral duties. This, we hold, grounds a pro tanto case for stricter and more comprehensive regulations of commercial speech by the animal industry. Third, and against the objection that restricting happy cow messages would violate freedom of speech, we contend that none of the most influential arguments for free speech grants them protection. Indeed, we suggest, those rationales seem to call for their restriction. Fourth, and finally, we review some possible ways to defuse the misleading potential of happy cow messages through commercial speech regulations. (shrink)

In the name of restoring professionalism, an influential group of physician-educators have urged academic medical centers to take the lead in purging the house of medicine of the conflicts of interest created by industry's marketing. I argue that this revivalist movement is misguided, uses “conflict of interest” as an epithet, creates counter-productive incentives, and fails the duty to prepare physicians for ethical engagement with their commercial partners in patient care.

In purity and holiness I will guard my life and my art.Every physician-patient encounter is a conflict of interest. Every physician-payer encounter is also a conflict of interest.Wide-spread criticism of the pharmaceutical industry’s extravagant marketing practices and some doctors’ undignified, even appalling eagerness to stuff themselves, their pockets and their offices with the industry’s “stuff,” prompted physician groups, the drug and device industry itself to institute reforms designed better to limit industry influence on physicians.But according to Troyen Brennan and his (...) coauthors, the reforms, while reducing some of the most egregious instances of industry influence peddling and physicians’ self-debasement, were doomed fundamentally, for three reasons. First, they were based on common sense but incorrect assumptions about the mechanism of industry influence and on myths about the efficacy of disclosure as an ethical disinfectant. Second, they relied on voluntary adherence and so failed to pinpoint responsibility for monitoring compliance and enforcement. (shrink)

. Although the courts have ruled that companies are legal persons, they have not yet made clear the extent to which political free speech for corporations is limited by the strictures legitimately placed upon corporate commercial speech. I explore the question of whether or not companies can properly be said to have the right to civil free speech or whether corporate speech is always de facto commercial speech not subject to the same sorts (...) of legal protections as is the right to civil free speech. In the absence of clearly defined legal precedent, I emphasize moral reasons for determining the appropriate limits of corporate civil free speech. Appealing to arguments typically used to justify individual rights to civil free speech, I examine the extent to which this sort of justification may or may not be legitimately extended to corporations. I conclude that corporate rights to civil free speech must be restricted because granting rights of free speech to institutions may, in practice, undermine the moral rationale and practical feasibility of guaranteeing rights of civil free speech to individuals. Furthermore, I argue that granting corporations full rights to civil free speech will undercut attempts to develop good moral character in corporate institutions by undermining the efforts of watchdog organizations. (shrink)

: The present work analyses Content Moderation, focusing on ethical concerns and cognitive effects. Starting from a general description and history of the moderation process, it stresses some ethical problems: quality of moderation, transparency, and the working conditions of human moderators. Using some of Facebook leaked slides offering examples of moderation, we define some controversial rules and principles for Commercial Content Moderation. These examples highlight a general lack of coherency and transparency, which has the potential to affect users’ cognitive (...) attitudes, their perception of reality, and their freedom of speech. Such effects are studied in comparison to other well-known online cognitive phenomena and in relation to the most recent dedicated legislation in EU countries. The current Content Moderation scheme leaves users at risk of specific cognitive distortions, highlighting the urgent need for greater transparency throughout the moderation process and better working conditions for moderators. Keywords: Content Moderation; Freedom of Speech; Epistemic Bubble; Technology Ethics Commercial Content Moderation: un oscuro labirinto per la libertà d’espressione e le opinioni degli utenti Riassunto: Il presente lavoro offre un’analisi approfondita della moderazione di contenuti, concentrandosi sulle problematiche etiche e sugli effetti cognitivi. A partire da una introduzione ai concetti chiave e alla storia della moderazione di contenuti online, si concentra su alcuni problemi etici primari: la qualità della moderazione, la sua trasparenza e le condizioni di lavoro dei lavoratori. Utilizzando dei documenti formativi interni di Facebook, pubblicati da un quotidiano e dagli esempi in essi contenuti, definiremo le controverse regole e i principi della Commercial Content Moderation. Ne emerge una generale mancanza di coerenza organizzativa e di trasparenza nel processo, che mostra potenziali effetti dannosi sulle attitudini degli utenti, sulla loro percezione della realtà e la loro libertà di parola. Tali effetti saranno studiati in confronto con i più conosciuti effetti cognitivi del mondo dei social ed in relazione alle più recenti disposizioni di leggi europee in merito. Gli schemi attualmente in uso producono degli specifici effetti di distorsione cognitiva e conseguentemente mostrano l’importanza di una maggiore attenzione alla trasparenza del processo e alle condizioni di lavoro dei moderatori. Parole chiave: Moderazione di contenuti; Libertà di parola; Bolla epistemica; Etica della tecnologia. (shrink)

This chapter explores the tension between public health protection and the freedom of commercial expression from a Commonwealth Caribbean perspective, using Barbados and Jamaica as case studies. First, it assesses the scope of the right to freedom of expression. Second, it discusses the extent to which public health protection may be invoked to restrict the right. The authors conclude that Commonwealth Caribbean states can justifiably restrict commercial speech about tobacco products and unhealthy food and beverages.

In authoritarian states, the discourse on freedom of speech, conducted by those opposed to non-democratic governments, focuses on the core aspects of this freedom: on a right to criticize the government, a right to advocate theories arid ideologies contrary to government-imposed orthodoxy, a right to demand institutional reforms, changes in politics, resignation of the incompetent and the corrupt from positions of authority. The claims for freedom of speech focus on those exercises of freedom that are most fundamental and (...) most beneficial to citizens - and which are denied to them by the government. But in a by-and large democratic polity, where these fundamental benefits of freedom of speech are generally enjoyed by the citizens, the public and scholarly discourse on freedom of speech hovers about the peripheries of that freedom; the focus is on its outer boundaries rather than at the central territory of freedom of speech. Those borderline cases, in which people who are otherwise genuinely committed to the core aspects of freedom of speech may sincerely disagree, include pornography, racist hate speech and religious bigoted expressions, defamation of politicians and of private persons, contempt of court, incitement to violence, disclosure of military or commercial secrets, advertising of merchandise such as alcohol or cigarettes or of services and entertainment such as gambling and prostitution. (shrink)

For commercial purveyors of digital speech, information and entertainment, the biggest threat posed by the Internet isn''t the threat of piracy, but the threat posed by free speech -- speech that doesn''t cost any money. Free speech has the potential to squeeze out expensive speech. A glut of high quality free stuff has the potential to run companies in the business of selling speech out of business. We haven''t had to worry about this (...) before, because speaking in a meaningful way to a large audience was expensive, and people couldn''t afford to do serious mass speaking for free for very long. The Internet has made it much cheaper. It doesn''t take much to give out information to the whole world, every day, for free, for years. And people do. If we are trying to increase the abundant dissemination of information, free speech is good. If we are trying to increase commerce in information, free speech is arguably bad, in that it competes with pay speech. Information merchants would obviously prefer that the only speech in the marketplace be pay speech. In the past two years, commercial content owners have scored significant progress in herding free speakers off the Net. There''s an important synergy between persuading the government to give your industry some friendly new laws or regulations, and using new and old legal tools to make life more difficult or expensive for inconvenient competitors who aren''t necessarily doing anything illegal. Recently, businesses have been able to combine the two strategies to make the Internet a much safer place to sell speech, by making the Internet a less friendly, more dangerous place to give away speech for free. (shrink)

This article investigates the intersections of secrecy/interiority, the state, and speech/ expression, and their implications for the rights of women. I propose a critique of commercial pornography that reanimates MacKinnon's claim that pornography and American democracy are in a relationship of mutual reinforcement, and incorporates poststructuralist (Lyotard, Baudrillard, and Butler) commitments to secrecy and unintelligibility, as well as their role in the production of pleasure.

This article analyzes discourse, narrative, and video editing to introduce the concept of ‘historical coherence’. This concept is an expansion of Alessandro Duranti’s notion of ‘existential coherence’ – the construction of an embodied narrative connecting a candidate’s past with his or her decision to run for office – from his 2006 study of a candidate’s campaign speeches. This study examines how language and communication are linked with historical narratives through the use of multimodal stories in which US political commercials link (...) candidates’ present actions with historical events, dynamics, artifacts, and/or figures. This ‘historical coherence’ is constructed through the following strategies: constructing a narrative in which popular historical figures or archetypal figures are in agreement with the candidate; preempting charges of lack of historical coherence; and presenting historical restrictions to freedom and casting the candidate, or the candidate’s party, in general, as a preventative from future calamities and transgressions to freedom. (shrink)

Elephant 2000 is a proposed programming language good for writing and verifying programs that interact with people (eg. transaction processing) or interact with programs belonging to other organizations (eg. electronic data interchange) 1. Communication inputs and outputs are in an I-O language whose sentences are meaningful speech acts identified in the language as questions, answers, offers, acceptances, declinations, requests, permissions and promises. 2. The correctness of programs is partly defined in terms of proper performance of the speech acts. (...) Answers should be truthful and responsive, and promises should be kept. Sentences of logic expressing these forms of correctness can be generated automatically from the form of the program. 3. Elephant aource programs may not need data structures, because they can refer directly to the past. Thus a program can say that an airline passenger has a reservation if he has made one and hasn't cancelled it. 4. Elephant programs themselves can be represented as sentences of logic. Their extensional properties follow from this representation without an intervening theory of programming or anything like Hoare axioms. 5. Elephant programs that interact non-trivially with the outside world can have both input-output specification, relating the programs inputs and outputs, and accomplishment specifications concerning what the program accomplishes in the world. These concepts are respectively generalizations of the philosophers' illocutionary and perlocutionary speech acts. 6. Programs that engage in commercial transactions assume obligations on behalf of their owners in exchange for obligations assumed by other entities. It may be part of the specification of an Elephant 2000 program that these obligations are exchanged as intended, and this too can be expressed by a logical sentence. 7. Human speech acts involve intelligence. Elephant 2000 is on the borderline of AI, but the article emphasizes the Elephant usages that do not require AI. (shrink)

In Brazil, the normative landscape around advertising is complex, not the least because of limitations inherent to dispute resolution mechanisms. Focusing on unhealthy food and beverages, this case study identifies some challenges and opportunities around advertising restrictions, including in relation to freedom of speech.

Numerous studies have documented the demand for information regarding corporations’ relationships to society. Much recent research has demonstrated why stakeholders need this information, and how it benefits both companies and the public. These studies suggest numerous methods by which companies can effectively disclose corporate social responsibility (CSR) information to the public, but in practice, reporting this type of information is fraught with legal and ethical uncertainty often unexplored in most literature. This article represents a fresh analysis of the numerous pragmatic (...) consequences and legal and ethical complications inherent in CSR reporting, using Nike Corporation as a case example. The article discusses the theoretical viewpoints surrounding the ethics of CSR disclosure, and presents the case of Nike and the complications it encountered while advertising CSR information. The article ends with an analysis of CSR auditing as a possible solution to companies seeking to improve the method and transparency of social responsibility reporting. (shrink)

Does commercial speech deserve the same freedom from governmental interference as do noncommercial forms of expression? Examination of this question forces a reappraisal of the grounds upon which freedom of expression rests. I urge an analysis of those grounds which founds freedom of speech upon the requirements of individual autonomy over against society. I then apply the autonomy analysis to commercial expression by examining the empirical features which distinguish commercial forms of expression. Some such features (...) - e.g., triviality — have been cited by others as justification for limiting the freedom accorded commercial speech, but I reject the power of those features to limit freedom of expression. Instead, I identify three features of commercial expression which are relevant to the task: resiliency (coupled with potential for abuse), action-orientation, and intimate connection with conventional commercial structures. I discuss the implications of these features for legitimizing governmental restriction of freedom in commercial expression, with the general conclusion that such restriction must be more severely limited than is commonly thought. (shrink)

This Article aims to show how the food industry has instrumentalized the right to freedom of expression to oppose innovative laws in Chile aimed at creating healthier food environments.

In this paper I suggest practical measures that can address some familiar, and some not so familiar, commercial obstacles to increasing media coverage of dissident opinion.The kernel of my proposal is for media codes of practice and workplace norms to reflect an ethical distinction between different kinds of commercial speech.

For Kant, the contents of cosmopolitan law are to be ‘limited’ to non-citizens' subjective rights to hospitality. Although hospitality yields universal and far-reaching communicative rights, its limits may seem overly restrictive at first. I argue that this narrow focus is intended to fend off justifications for colonial occupation that could otherwise draw support from Kant's own doctrine of private law. Kantian hospitality is further limited in that it does not cover all forms of communicative exchange. As can be shown from (...) his endorsement of China's and Japan's protectionist policies, Kant is not averse to limiting cosmopolitan citizens' commercial speech. In conclusion, I discuss rivalling interpretations of Kant's justification of hospitality. I argue that this justification cannot rest exclusively on the innate human right to freedom, but must draw on facts about the world as well. (shrink)

In the recent case of Nike v. Kasky both sides argued that their standard for distinguishing commercial speech from political speechwould create the better policy for ensuring accurate and complete disclosure of social information by corporations. Using insights frominformation economics, we argue that neither standard will achieve the policy goal of optimal truthful disclosure. Instead, we argue that the appropriate standard is one of optimal truthful disclosure—balancing the value of speech against the costs of misinformation. Specifically, we (...) argue that an SEC-sanctioned safe harbor available under a closely supervised system for social reporting will bring about optimal truthful disclosure. The scheme is intended to enhance stakeholder confidence in corporate social and political commentary, while at the same time encouraging corporations to provide accurate information in a fair playing field of public debate. (shrink)

For Kant, the contents of cosmopolitan law are to be ‘limited’ to non-citizens' subjective rights to hospitality. Although hospitality yields universal and far-reaching communicative rights, its limits may seem overly restrictive at first. I argue that this narrow focus is intended to fend off justifications for colonial occupation that could otherwise draw support from Kant's own doctrine of private law. Kantian hospitality is further limited in that it does not cover all forms of communicative exchange. As can be shown from (...) his endorsement of China's and Japan's protectionist policies, Kant is not averse to limiting cosmopolitan citizens' commercial speech. In conclusion, I discuss rivalling interpretations of Kant's justification of hospitality. I argue that this justification cannot rest exclusively on the innate human right to freedom, but must draw on facts about the world as well. (shrink)

In the recent case of Nike v. Kasky both sides argued that their standard for distinguishing commercial speech from political speechwould create the better policy for ensuring accurate and complete disclosure of social information by corporations. Using insights frominformation economics, we argue that neither standard will achieve the policy goal of optimal truthful disclosure. Instead, we argue that the appropriate standard is one of optimal truthful disclosure—balancing the value of speech against the costs of misinformation. Specifically, we (...) argue that an SEC-sanctioned safe harbor available under a closely supervised system for social reporting will bring about optimal truthful disclosure. The scheme is intended to enhance stakeholder confidence in corporate social and political commentary, while at the same time encouraging corporations to provide accurate information in a fair playing field of public debate. (shrink)

The evidence reveals that young children are targeted by food and beverage advertisers but are unable to comprehend the commercial context and persuasive intent of marketing. Although the First Amendment protects commercial speech, it does not protect deceptive and misleading speech for profit. Marketing directed at children may fall into this category of unprotected speech. Further, children do not have the same First Amendment right to receive speech as adults. For the first time since (...) the Federal Trade Commission's original attempt to regulate marketing to children in the 1970s , the political, scientific, and legal climate coalesce to make the time well-suited to reevaluate the FTC's authority for action. This paper analyzes the constitutional authority for the FTC to regulate television food marketing directed at children as deceptive in light of the most robust public health evidence on the subject. (shrink)

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children. A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission 's foray into the topic, termed KidVid, was terminated by an act of Congress (...) in 1981. The FTC has since focused on self-regulation as a potential solution to such concerns. However, this method of control has proven ineffective to protect children, and has led to growing recognition that federal regulation may be necessary.Since KidVid, the evidence has only mounted that children are uniquely vulnerable to the effects of advertising. Over the same time period, the exposition of commercial speech jurisprudence has plateaued, as the Supreme Court has not decided a pure commercial speech case since 2002. (shrink)

In this paper, I derive a test for distinguishing between derogatory terms by expanding upon Seana Shiffrin’s recent “thinker-based approach.” Protection on her account extends to many forms of speech due to a connection between speech and an individual’s development of autonomous thought. Shiffrin questions whether there is protection for corporate and commercial speech. The latter have a tendency to interfere with autonomous thought processes and do not clearly serve their development. I argue that these reasons (...) for limitation serve as a basis for making nuanced distinctions for general regulation and applying this approach to controversies surrounding derogatory team names in sport. Many kinds of speech can be offensive and derogatory, yet I argue that only some may be said to be parasitic on communicative endeavors and legitimately fall outside free speech values as a result. Regulation should not be concerned with the content of speech, the manner in which certain words are spoken, or even the speaker’s positive or negative intent. Instead, the focus should remain on autonomous mental development of speakers and hearers. (shrink)

In September 2012, news broke of a developing drug disaster in the United States. Health authorities had linked a fungal meningitis outbreak to a contaminated steroid made by a company called the New England Compounding Center. The contaminated steroid was a compounded drug that had not been approved by the Food and Drug Administration, differing from three others that had been approved in that it lacked preservatives present in those agents. Factory inspections revealed unsanitary conditions at NECC's drug production facility. (...) By the time the source of the outbreak was identified, an estimated fourteen thousand people had been injected with the drug. As of December 2012, thirty‐nine had died of meningitis, and hundreds more had been diagnosed with meningitis and other drug‐related conditions. Many factors contributed to this disaster. One was a 2002 Supreme Court decision holding that a law prohibiting providers of compounded drugs from promoting their products through advertising and other means impermissibly restricted commercial speech. (shrink)

Recent Supreme Court decisions have established second tier protection for commercial speech under the First Amendment by according it some, but not all, of the protections accorded ideological speech. The Court''s arguments closely parallel John Staurt Mill''s utilitarian arguments about liberty, liberty-limiting principles and trade in his classic essay,On Liberty, and hence are subject to the same defects as any utilitarian analysis and justification of a right. Recent philosophical apologies for the Court''s bifurcated approach to free (...) class='Hi'>speech are unpersuasive. Commercial speech protects fundamental interests. There are important connections between freedom of commercial speech and political and personal autonomy. It is possible to extend full protection to commercial speech, while simultaneously minimizing its potential for abuse. Such considerations provide compelling arguments for taking the right to freedom of commercial communication seriously by according it full First Amendment protection and by restricting it only when competing and over-riding rights claims, or weightier considerations of justice, can be adduced. (shrink)

As countries around the world work to restrict unhealthy food and beverage marketing to children, the U.S. remains reliant on industry-self regulation. The First Amendment’s protection for commercial speech and previous gutting of the Federal Trade Commission’s authority pose barriers to restricting food marketing to children. However, false, unfair, and deceptive acts and practices remain subject to regulation and provide an avenue to address marketing to young children, modern practices that have evaded regulation, and gaps in the food (...) and beverage industry’s self-regulatory approach. (shrink)

In recent years, there has been heightened concern regarding the marketing of potentially harmful products (PHPs) to disadvantaged markets. Three issues which commonly dominate discussions in this controversy are: (1) the potential for exploitation of vulnerable markets, (2) the tradeoff between protection of disadvantaged consumers and their rights to make informed choices and (3) the appropriateness of using the commercial speech doctrine to settle the issue of targeting minority markets with PHPs. This paper examines the arguments raised in (...) this debate so that interested parties will better appreciate the ethical complexity of marketing PHPs to minority segments. (shrink)