The Centers for Disease Control and Prevention ("CDC," which is part of the federal Department of Health and Human Services, "HHS") recommended thatretailers cease sales of e-cigarettes and all other vaping products. Although CDC has no direct jurisdiction over retail establishments, it issued the recommendation in the hope thatfewer people would be harmed by vaping, which has started to be linked to severe lung disease and deathin a newly identified illness called EVALI ("E-cigarette or Vaping Associated Lung Injury"). Few retailers followed the recommendation, so CDC decided to try another approach, as EVALI is becoming more widely reported. CDC asked Congress to amend the federal statute that authorizes HHS to give grants to states to study disease outbreaks (in which local or state health departments collect data and report new diseases to CDC). The statute currently allows every state to apply for such grants, and all states have applied for and received the federal grants. CDC wants Congress to amend the law so that grants are awarded only to states that both outlaw vaping advertisements and ban vaping for minors. The new law would read as follows:

Federal money grants for state public health programs may be awarded to a state that (1)prohibits advertising for all e-cigarette and vaping products, and (2)criminalizes the sale of all e-cigarette and vaping products to individuals under the age of 18.

CDC asserts these requirements willencourage states to pass laws that protect the public from the dangers of vaping, especially teenagers, who appear to be taking up vaping in the greatest numbers. The amended law coulddecrease the number of people who vape as well as reduce exposure to the idea of vapingand vaping products. CDC believes these limitations would buy researchers time to gather data regarding the causes and cures for EVALI before more individuals fall ill and die.

You work in your state's Health Department. The Commissioner of Health wants to know whether the state should support or oppose this new law. She asks you to write a memorandum explaining whether the CDC's proposed lawwould be constitutionalby answering the following questions:

1.Does Congress have power to enact the proposed amendment? What are the arguments that the amendment would be a valid exercise of congressional authority?

2. Does the proposed amendment infringe any rights? If so, what are the arguments that the law is not a valid exercise of congressional authority?

3.Which of these argument(s) would the U.S. Supreme Court be most likely to accept as correct (if the case were to be heard by the Court), and why?

4.Could Congress address CDC's concerns in any other manner? Why or why not?

identify the source(s) of law at issue,the right or power at issue, the test (method of analysis/standard of review-Strict scrutiny, intermediate scrutiny, rational basis)) used to determine whether a law is valid orhow it applies to the facts, whichspecific facts meet each part of the test and which do not

Case to reference to:44 liquormart v Rhode island & RJ reynolds V .FDA

Which test appliesCentral Hudson

1.Speech relates to lawful activity, isn't misleading (does the speech warrant 1^st Amendment protection)

2.Substantial interest

3.Directly advances interest, to a material degree

4.Not more extensive than necessary (reasonable fit)

Zauderer

1.Requirement is factual and uncontroversial

2.Significant interest

3.Reasonably related

4.Not arbitrary or unduly burdensome

*Consider if alternative channels for advertising are available

*Consumer protection

*Typically related to correcting misleading info/ad