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More Taxes and Less Free Speech

Synopsis: House Bill 99-1208 imposes overbroad and unconstitutional restrictions on cartoons of all types, and on tobacco advertising. It raises taxes on the false theory that smoking costs the State money.

What the Bill Does: This bill extends the principles of the tobacco settlement. It empowers the state will collect an additional tax on each pack of cigarettes sold in the state by firms that were not party to the tobacco settlement. It would make it illegal to advertise, promote or market cigarettes to minors and to use cartoons in cigarette promotion, packaging, or labeling. Cigarettes are defined any product that contains nicotine and is intended to be heated when used, as well as loose tobacco. Cigars fit this definition. Cartoons are defined as any drawings that use comically exaggerated features, attribute any anthropomorphic characteristics to anything other than people, or give people unnatural abilities. Joe Camel is specifically defined as a cartoon.

Discussion: The logic behind this bill depends upon three false assumptions:

  1. The state government has a duty to collect additional taxes on tobacco products because the government suffers financial harm when people smoke.
  2. External observers can tell whether tobacco advertising and promotions target people under 18.
  3. Advertising causes people to smoke.

The evidence suggests that smokers generate a net financial benefit for states. W. Kip Viscusi, an economist at Harvard Law School, contrasted the financial burdens of state expenses for medical care and lost taxes on earnings with the financial gains from state excise taxes on cigarettes, lower nursing home expenses, and smaller pension payouts. Viscusi estimated that the financial gain for representative states ranged from 10.2 cents per pack in Virginia, the state with the lowest tobacco excise tax, to 59.4 cents in New York, the state with the highest excise tax. Smokers, not the state, bear the financial burden. As a group, they tend to have lower incomes than non-smokers. This bill would take money from smokers and stockholders in tobacco companies and transfer it to the group of unknown recipients who will receive the tobacco escrow monies.

Censorship of Speech: The bill prohibits any person from directly or indirectly taking any action with the primary purpose of initiating, maintaining or increasing tobacco use by minors. The overly broad language should be cause for concern. Objectively determining primary purpose and indirect action are impossible. Does a movie showing James Bond smoking a particular brand of cigarette qualify What business does the state have determining permissible advertising for businesses selling a legal product What about the costs associated with the long term effects of such Orwellian regulation and the litigation it will probably spawn

The prohibition is an updated version of the antebellum Southern statutes which made it a crime to say or publish anything which might encourage slave revolts. The statutes were used to make it a crime to say anything critical of slavery, or to make the case for abolition–even before an all-white audience.

In reaction, Congress after the Civil War passed the Fourteenth Amendment, which, among other things, forbids states to infringe the Freedom of Speech and of the Press. The censorship provisions of H.B. 1208 are inconsistent with the Fourteenth Amendment, as well as the Colorado Constitutions freedom of speech provision. Suppose, for example, that a speaker on a high school campus points out the following facts:

  • there is almost no evidence suggesting that smoking only a few cigarettes a day causes serious health problems;
  • studies show that students who smoke immediately before a test do better than students who do not, since nicotine improves brain function; and
  • the claims fifty thousand people a year are killed by second-hand smoke a plainly wrong.

Is there any doubt that speakers who utter such factually correct, but politically incorrect statements, would be in danger of being turned over the District Attorney by local health Puritans, for indirectly encouraging teenagers to smoke

Censorship of Advertising: Prohibiting advertising, promotion, or marketing targeting people under 18 is equally nave. Eighteen is a legal boundary, not an advertising one. Promotions that appeal to people in their early 20s often appeal to those in their late teens as well. Some automobile advertisements appeal both to teenage boys and middle-aged men. In effect, the indirect advertising ban gives state government control over the public activities of tobacco companies because there is no practical way to prove that a particular activity does not appeal to minors.

Setting aside the damage such a precedent would do to free speech, there is not evidence to suggest that handing state government this kind of control over private activity would really reduce smoking. Contrary to popular belief, according to authorities as diverse as the U.S. surgeon generals office, the government of the United Kingdom, and the Belgian health minister agree that tobacco advertising does not appear to affect tobacco consumption. The opposite impression has arisen out of confusion over the fact that increasing a persons awareness of a particular brand does not necessarily mean that that person has an increased propensity to smoke.

For example, the much-hyped studies showing that preschoolers were as familiar with Joe Camel as Mickey Mouse say nothing about smoking behavior. Studies showing that 85 percent of six-year-olds associated Joe Camel with cigarettes also showed that less than 4 percent thought cigarettes were good. Most six-year-olds probably associate Bugs Bunny with carrots. This does not imply that they love eating them for dinner. Smoking levels increased in European countries with outright tobacco advertising bans, and the percentage of youth smokers, defined as the percent of high school seniors who use any cigarettes has fallen from 27 to 20 percent since 1975 In spite of tobacco advertising.

Censorship of Cartoons: This bill also gives the state legislature the power to define cartoons so that it can ban them in marketing tobacco products. Cartoons are any depiction of anything (object, person, animal, creature, or any similar caricature) that has comically exaggerated features, gives human characteristics to anything not a human, or endows humans with extrahuman abilities. Some anti-tobacco extremists consider smoking such an evil, abhorrent, and immoral activity that any ad merely showing smokers merely having a good time would endows them with extrahuman abilities. They reason that human smokers, drug addicts by definition, cannot possibly have a good time when pursuing their filthy habit.

Since the ban applies not just to direct advertising, but also to promotion, there is a risk that a zealous prosecutor could bring a case against non-commercial cartoons which portray smoking. For example, The Simpsons cartoon series has literally hundreds of instances of characters smoking.

Wile E. Coyote cartoons make fun of explosives, violence, and hunting. Some argue that such cartoons harm children by encouraging violence. Look for Mr. Coyote to join Joe Camel on the Colorado banned cartoons list in the next bill that plans to save the children by savaging the First Amendment.

Prepared by Linda Gorman, Independence Institute