By: Debra Gersh Hernandez
Government proposes severe curbs on print ads in an attempt
to prevent smoking by minors; tobacco companies, ad coalition
call the move unconstitutional, file federal lawsuit sp.
IN AN ATTEMPT to stamp out smoking by kids, sweeping regulations have been proposed that would severely restrict cigarette advertising and promotion.
The move was immediately called unconstitutional and challenged by two lawsuits, one from an advertising coalition and the other by tobacco companies, filed in federal court in North Carolina.
Similar proposals have been unsuccessfully put forth in Congress for many years. Now, they have been presented in the form of rulemaking by the Food and Drug Administration. This would take away the authority for regulating cigarette advertising from the Federal Trade Commission, which is charged with oversight for all advertising.
The FDA asserted its authority over cigarettes and smokeless tobacco after ruling that nicotine is an addictive drug and those products are drug delivery devices regulated under the Food, Drug and Cosmetic Act. Cigar and pipe tobacco were not addressed in the proposed rulemaking, since they are used primarily by adults.
In addition to restrictions on vending machines and the sale of cigarettes and smokeless tobacco to minors, there are proposals affecting advertising, including the following:
? In publications with a youth readership of 15% or that have more than 2 million readers under age 18, only black-and-white text-only tombstone ads for tobacco products would be allowed. Advertising in publications directed primarily at adults would not be affected.
? Outdoor advertising within 1,000 feet of a school or playground would be prohibited. Outdoor ads beyond 1,000 feet, including transit ads, would have to be in the tombstone format.
? Sponsorship of events would have to use the corporate name only. For example, the Virginia Slims Tennis Tournament would become the Philip Morris Tennis Tournament. Entries and teams sponsored by tobacco companies would be treated like labeling ? black-and-white text-only, no logos.
? Giving away “brand identifiable non-tobacco items,” such as caps, T-shirts or bags, would be prohibited. There would be an end to programs that trade tobacco proofs of purchase for non-smoking items, and no lotteries or contests would be allowed if they required the purchase of tobacco products.
? The tobacco industry would be forced to fund a $150 million anti-smoking national advertising campaign ? “including major reliance on television images” ? directed at youths. Each company’s payment would be based on its percentage of the industry’s total advertising and marketing expenditures. For example, if a company’s expenditures were 40% of the industry total, it would have to contribute 40% toward the total cost of the campaign.
The FDA came up with the monetary figure by looking at the $75 million in commercial airtime afforded anti-smoking messages in the 1970s, as required by the Fairness Doctrine, until tobacco ads on tv were banned in 1971.
According to the FDA, in 1994 dollars, that would be $290 million, but it believes about half that, $150 million, would be effective.
? Each tobacco manufacturer would be required to submit sample labels and advertising to the FDA for enforcement purposes, as is required for FDA regulation of restricted devices.
The FDA further warned that if the use of tobacco products by minors is not cut in half by the year 2000, it will take “additional measures” to achieve that goal.
“Adults make their own decisions about whether or not to smoke,” President Clinton said during a news conference announcing the measure.
“But we all know that teenagers are especially susceptible to pressures: pressure to the manipulation of the mass media, the press of the seduction of skilled marketing campaigns aimed at exploiting their insecurities and uncertainties about life,” he said.
“When Joe Camel tells young children that smoking is cool, when billboards tell teens that smoking will lead to true romance, when Virginia Slims tells adolescents that cigarettes may make them thin and glamorous, then our children need our wisdom, our guidance and our experience,” the president continued.
Clinton said he saw no First Amendment problems with the regulations.
“It cannot be a violation of the freedom of speech in this country to say that you cannot advertise to entice people to do something which they cannot legally do,” Clinton said. “So I just don’t buy the First Amendment argument. It’s just not true.
“And by the way,” he added, “that is why . . . the FDA ran the risk of having a rather complex rule, to make it clear that there should be some freedom left, some considerable freedom left, to advertise to adults.”
The Freedom to Advertise Coalition, however, disagreed with the president, and argued in its lawsuit that the rules would violate commercial speech protections.
Making up the Freedom to Advertise Coalition are the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers Inc., Magazine Publishers of America, Outdoor Advertising Association of America, and Point of Purchase Advertising Institute.
In its lawsuit, the coalition charged not only that the FDA has no authority to regulate this advertising ? particularly after similar proposals were rejected repeatedly by Congress ? but also that the restrictions are “so sweeping as to be the functional equivalent of an outright ban.”
“The FDA’s unlawful assertion of jurisdiction has a chilling effect on the commercial speech of [the coalition’s] members and constitutes a violation of the First Amendment,” the lawsuit asserted.
The proposal also cannot meet U.S. Supreme Court standards that prohibits restrictions on truthful, non-misleading commercial speech unless they are “narrowly tailored to directly advance a substantial government interest,” the lawsuit noted.
Further, “the proposed ban on tobacco advertisements within 1,000 feet of any schools constitutes an unconstitutional de facto ban on tobacco advertisements in most urban areas,”
according to the coalition lawsuit.
“This is an attempt by the FDA to block out messages about a legal product,” said coalition counsel John Fithian, an attorney with Patton Boggs in Washington. “Our belief is that the tobacco companies are not going to buy these [tombstone] ads.”
In fact, said ANA executive vice president Daniel L. Jaffe, “this censorship regime” goes further than any previous attempts to stifle free speech.
“It’s clearly unconstitutional. There is no justification for this blanket ban,” Jaffe said, pointing out that other nations have been unsuccessful in attempts to ban or restrict tobacco advertising.
AAAA executive vice president Harold A. Shoup said that the coalition is not battling over “whether people should purchase tobacco. That is a personal decision.
“We are concerned about the rights of marketers to advertise legal products and the precedent this would set for other politically correct but legal products,” he said, calling the proposal “ludicrous.”
AAF president Wally Snyder noted that the coalition does “not underestimate the problems with underage smoking,” but it does oppose “the transfer of authority [over advertising] from the FTC to the FDA.”
“The restrictions proposed by the FDA are nothing short of an attempt to end-run the legislative process,” Snyder stated.
“Congress already has given the FTC the authority in this area,” he noted. “The commissioners and staff understand the industry and its practices. They have the expertise in this area.”
The amount of tobacco advertising in magazines has fallen dramatically, according to MPA executive vice president George Gross. In the first half of 1995, it was less than 3% of all advertising in 200 consumer magazines (about 85% of the industry), while eight years ago it was between 7% and 8%.
“Advertising restrictions must be narrowly tailored. In this case, I don’t believe it is,” Gross said, pointing out that restricting publications with 15% youth readership means that 85% of the adult readers will not receive the message.
On the same day, another lawsuit was filed in the North Carolina federal court by five tobacco companies and a North Carolina advertising agency.
In addition to alleging FDA’s lack of jurisdiction and First Amendment violations, the tobacco companies charged that the regulations violate their rights under the Fifth Amendment.
“To the extent that FDA’s proposed regulations would prohibit plaintiffs from using certain trademarks or copyrighted material, such regulations would be without statutory authorization and would constitute a deprivation by FDA of property without due process of law and a taking of private property by FDA without just compensation,” the lawsuit stated.
The tobacco companies’ lawsuit further alleged that the administration bowed to pressure from anti-smoking groups, one of which reportedly had threatened to sue the FDA if it did not act.
Included in the tobacco companies’ lawsuit are Philip Morris Inc., R.J. Reynolds Tobacco Corp., Brown & Williamson Tobacco Corp., Liggett Group Inc., Lorillard Tobacco Co., and Coyne-Beahm Inc., a North Carolina advertising agency.
Philip Morris senior vice president/corporate affairs Steve Parrish called the FDA action a “Trojan Horse, set forward under the guise of preventing youth smoking. Make no mistake; the real hidden agenda here is prohibition.”
?(Illustrations provided by the advertising associations show how the look of cigarette advertising would change under proposed requirement for “tombstone” advertising.) [Photo & Caption]
?It cannot be a violation of the freedom of speech in this country to say that you cannot advertise to entice people to do something which they cannot legally do. So I just don’t buy the First Amendment argument. It’s just not true.”) [Caption]
?(-President Clinton) [Photo]