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speech under Zauderer. The court also upheld bans on event sponsorship,
free samples, the distribution of branded nontobacco products (other than
matches), and marketing claims for purported reduced-risk tobacco prod-
ucts without prior FDA approval. However, the court also found the pro-
posed restriction on color and imagery in tobacco advertising to be overly
broad and not specifically tailored to target particular practices that have
been proven to have an impact on underage smoking (Discount Tobacco
City v. United States, 2012). The second appellate court held that the FDA
had not proven its proposal would directly advance the government’s in-
terest in reducing smoking rates under Central Hudson (R.J. Reynolds
Tobacco Co. v. U.S. 2012). The FDA is conducting research to show its pro-
posals are likely to significantly reduce smoking.
A final area of regulation for commercial marketing is the inclusion of
endorsements and testimonials in advertising. The FTC has issued guide-
lines that require endorsements to be truthful, accurate, and made in good
faith. Furthermore, if there is a commercial connection that the audience
would not expect between the endorser and the marketed product or
service beyond the usual endorsement payment, it must be disclosed
(16 C.F. R. 255). Courts and statutes in many states have also recognized
a right of publicity that prevents a person’s name or likeness from being
used in commercial promotions without permission. In many cases, this
right extends past the person’s death. The law also recognizes that this
right does not apply to noncommercial speech, such as news reporting or
biographical reports (Petty & D’Rozario, 2009).

Distinguishing Social Marketing from Commercial Speech

The question often arises as to whether some particular speech is purely
commercial or whether it is commercial speech mixed with other types of
speech that merit fuller First Amendment protection. For example, in
Bigelow v. Virginia (1975), the U.S. Supreme Court overturned a state statue
prohibiting the encouragement of abortions that was used to convict a
newspaper for running an ad describing legal and safe abortion services
available in a neighboring state. The court held that the ad conveyed infor-
mation beyond pure commercial information, and since it was legal to
travel to the neighboring state to obtain a legal abortion, Virginia could not
restrict this information.
In contrast, eight years later, the U.S. Supreme Court found a direct
mail booklet on venereal disease (arguably social marketing) published by
a condom marketer to be commercial speech for three reasons: (1) it pro-
posed a commercial transaction, (2) it was in the form of a traditional