14 Hastings Const. L.Q. 869 (1986-1987)
In re R.J. Reynolds Tobacco Co., Inc.: The Common Sense Distinction between Commercial and Noncommercial Speech

handle is hein.journals/hascq14 and id is 891 raw text is: COMMENTS
In re R.J. Reynolds Tobacco Co., Inc.: The
Common Sense Distinction Between
Commercial and Noncommercial
Speech
Introduction
The Supreme Court has recognized that commercial speech' is
afforded less first amendment protection than speech that goes well be-
yond proposing a business transaction or discusses matters of public con-
cern .... 2 Under the Court's commercial speech doctrine, speech
found to be commercial is subject to government regulation, whereas
noncommercial speech, such as comment on public issues, is fully pro-
tected by the First Amendment.3
In August 1986, the Federal Trade Commission (FTC) faced the
question of what characteristics make speech commercial. In re R.J.
Reynolds Tobacco Co., Inc.4 involved an article entitled Of Cigarettes
and Science, published by R.J. Reynolds Tobacco Company, a large
tobacco products manufacturer.5 The article ostensibly expressed R.J.
Reynolds' view on a medical study which purportedly weakened the
theory that smoking can lead to heart attacks. The FTC issued a
complaint alleging that the article was in fact an advertisement contain-
1. Commercial speech is readily identifiable when it is bare advertising in which the
idea one wishes to communicate is simply this: 'I will sell you... X ... at Y price.'
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761
(1976). There are instances, however, when it is more difficult to determine whether speech is
commercial. See, eg., infra text accompanying notes 65 & 68.
2. In re R.J. Reynolds Tobacco Co., Inc., 51 Antitrust & Trade Reg. Rep. (BNA) No.
1277, at 219 (Aug. 4, 1986). See Posadas De Puerto Rico Assocs. v. Tourism Co. of Puerto
Rico, 106 S. Ct. 2968 (1986); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983);
Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557 (1980); Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976);
Bigelow v. Virginia, 421 U.S. 809 (1975).
3. See infra text accompanying notes 58-62. U.S. CONST. amend. I provides: Congress
shall make no law ... abridging the freedom of speech.
4. 51 Antitrust & Trade Reg. Rep. (BNA) No. 1277, at 219 (Aug. 4, 1986), appeal dock-
eted, No. 9206 (FTC Aug. 7, 1986).
5. The full text of the article read:

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