Tobacco Advertising: The Constitutionality of Limiting its Tax Deductibility (CRS Report for Congress)
| Release Date |
March 4, 1998 |
| Report Number |
98-189 |
| Report Type |
Report |
| Authors |
Henry Cohen, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Under the Internal Revenue Code, advertising is ordinarily deductible as a business expense.
26
U.S.C. ¿ 162. It has been proposed, however, that the deductibility of the cost of advertising tobacco
products be limited or eliminated. Since advertising is a form of speech, this raises the question of
whether such a limitation would violate the provision of the First Amendment that "Congress shall
make no law . . . abridging the freedom of speech, or of the press . . . ." We conclude that it
apparently would not. As advertising is commercial speech, it is not entitled to the same level of
First Amendment protection as other speech, and to make it more expensive by limiting its tax
deductibility would apparently not violate the Central Hudson test that the Supreme
Court applies
in determining whether governmental restrictions on commercial speech are constitutional.
