담배광고 규제에 관한 헌법적 고찰− 미국에서의 경고도안(graphic warnings) 부착강제에 제기된 헌법적 의문을 중심으로 −

Tobacco-related disputes can generally be classified as litigation for the damages caused by smoking and tobacco regulation. In our current reality, absent comprehensive tobacco control acts, tobacco litigation functions are regarded as the most important social means of tobacco control. The Unites States has enacted and is enforcing the Family Smoking Prevention and Tobacco Control Act (TCA). The essential feature of the TCA is the granting of powerful supervisory authority over tobacco products to the FDA, which is designated as the main federal regulatory body for the manufacture, marketing and distribution of tobacco products. Meanwhile, based on the TCA, the FDA has enacted regulations making the affixing of graphic warnings, etc., on cigarette packs and tobacco advertisements mandatory, to which tobacco companies filed suit against the TCA and the regulations enacted by the FDA for the violation of their First Amendment rights. The U.S. Court of Appeals for the Sixth Circuit ruled that the TCA provisions providing for the FDA regulation of cigarette packs and tobacco advertisements did not violate the First Amendment rights of the tobacco companies. However, the U.S. Court of Appeals for the District of Columbia Circuit found the regulations enacted by the FDA forcing the affixing of graphic warnings, etc., on cigarette packs, etc., to violate the First Amendment rights of tobacco companies. In our case, discussions regarding comprehensive tobacco control laws have, up to this point, mainly been from the perspective of the recognition of the right to smoke, or the restriction of tobacco companies’ freedom of occupation. However, an examination of the discourse in the United States regarding graphic warnings shows that the violation of the freedom of expression also accounts for a very important portion of the discourse surrounding comprehensive tobacco control laws. With the enactment of compre- hensive tobacco control laws now a task immediately at hand, discussions in the United States regarding the TCA, and the content thereof, have many implications on us.