oa Comparative and International Law Journal of Southern Africa - Freedom of commercial speech: evaluating the ban on advertising of legal products such as tobacco
Although freedom of commercial expression is not specifically mentioned in section 16 of the Constitution of South Africa 108 of 1996, the right to freedom of expression includes inter alia the right to receive and impart ideas, which is wide enough to cover almost any form of expression. This article deals with freedom of speech in the form of commercial speech and particularly with the ban on the advertising of lawful consumer products such as tobacco. Although the focus falls mainly on tobacco advertising, the reasoning applies equally well to all similar advertising bans. Section 16 of the constitution and the Tobacco Products Control Act 83 of 1993 are in direct conflict with one another: the almost total ban on all forms of tobacco advertising and promotion severely restricts the right to receive and impart information on a legal consumer product. Various aspects in this debate are evaluated: whether advertising qualifies as a form of expression that is constitutionally protected and whether this right can be restricted; the advantages and disadvantages of a ban on the advertising of legal consumer products; the harm which the government seeks to reduce with its restrictive legislation; whether the ban on tobacco promotion results in a reduction of such harm; and whether this justifies the total ban on advertising. Various alternatives are evaluated and a comparative study of other jurisdictions is made.
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