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.

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 contribution reviews the main normative and positive arguments that can used in the assessment of the costs and benefits of food marketing restrictions, focusing specifically on theoretical and empirical developments in the economics of advertising, consumer behaviour and industrial organization since the 70s.

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.

In most countries, the alcohol industry enjoys considerable freedom to market its products. Where government regulation is proposed or enacted, the alcohol industry has often deployed legal arguments and used legal forums to challenge regulation. Governments considering marketing regulation must be cognizant of relevant legal constraints and be prepared to defend their policies against industry legal challenges.

This contribution considers the case law of European Court of Human Rights (ECtHR) and focuses on the extent to which the Contracting Parties to the European Convention on Human Rights (ECHR) can regulate the tobacco, alcohol, and food industries in a manner compatible with their ECHR obligations. After briefly presenting the two key cases dealing specifically with tobacco advertising, this contribution considers the main factors that the ECtHR takes into account when balancing competing concerns, and in particular freedom of commercial expression and public health protection. It concludes that none of these factors is absolute, as the Court considers the strength of each one of them on the facts of each case. Nevertheless, it is clear from its case law that States have a wide margin of appreciation to regulate marketing practices that are inimical to public health and the prevention of non-communicable diseases more specifically, to the extent that even extensive advertising restrictions can be compatible with Article 10 of the ECHR.

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.

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.

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.

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.

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.

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.

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.

When adopted in 1991, the French Loi Evin was pioneering as one of the first in the world to regulate alcohol marketing as extensively. This short contribution assesses whether it remains fit for purpose over 30 years later. To this effect, it assesses its main provisions, considers the legislative amendments that have ensued as well as the extensive interpretation French courts have given of its scope, before concluding that the prospects for its revisions are limited in the near future.

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.

The “public charge” rule is a long-standing immigration policy that seeks to determine the likelihood that a prospective immigrant will become dependent on the government for subsistence. When the Trump administration sought to expand the criteria that would count against an applicant for permanent residency to include public benefits historically excluded from the calculation, thousands of commenters wrote to oppose or support the proposed changes. This paper explores the moral and practical reasons commenters provided for their position on the public charge rule and considers the value of the public comment process for immigration, health, and social policy.

U.S. immigration law has excluded noncitizens likely to become a “public charge” since 1882. When the Trump administration proposed a new Rule expanding the interpretation of that exclusion in 2018, over 55,000 people wrote public comments. These comments, overwhelmingly opposed to the change, are the subject of Rachel Fabi and Lauren Zahn’s insightful article in this issue of The Journal of Law, Medicine, and Ethics. The themes they identify resonate with the history of the public charge exclusion, which has always reflected a tension between two aims of American governance — to provide for those in need of assistance, and to shape the nation’s citizenry according to ideals of self-sufficiency.

Research on opioid use in pregnancy is critically important to understand how the opioid epidemic has affected a generation of children, but also raises significant ethical and legal challenges. Embedded ethicists can help to fill the gaps in ethics oversight for such research, but further guidance is needed to help strike the balance between integration and independence.

This paper provides an overview of the societal impact of a rising dementia population and examines the legal and ethical implications posed by voluntary registries as a community-oriented solution to improve interactions between law enforcement and individuals with dementia. It provides a survey of active voluntary registries across the United States, with a focus on Arizona, which has the highest projected growth for individuals living with dementia in the country.