A coalition of advertising lobby groups will write Attorney General John Ashcroft, protesting the Justice Department's plan to broaden marketing restrictions if the government wins its lawsuit against tobacco companies.
The Freedom to Advertise Coalition, which includes the Association of National Advertisers, the American Advertising Federation and the American Association of Advertising Agencies, calls the plan—outlined in a pretrial document filed in December—"draconian." The letter will be sent either this week or next and is expected to point out that some of the proposed moves are unconstitutional.
Among the changes the Justice Department wants: the restriction of all tobacco ads to black and white; the extension of the warning label in each print ad to cover 50 percent of the ad; the allowance of graphic illustrations—such as an image of a diseased lung—to appear on warning labels; and the required disclosure of all past and current marketing plans from tobacco companies and their ad agencies to the government.
"I certainly can't think of any precedent for this," said Penelope Farthing, a partner at Washington law firm Patton Boggs, and the coalition's attorney. "I am surprised, and my clients are surprised as well. This goes far beyond the Clinton administration's proposals to restrict tobacco ads and is well beyond any legislative attempts made on Capitol Hill."
The Justice Department outlined its plan in response to the question posed by tobacco companies about what remedies the government might want if it were to win the lawsuit.
The 4A's, in an internal memo sent last week to agencies with tobacco accounts, called the Justice Department's move "an end run around the courts and Congress."
Dan Jaffe, ANA's executive vice president of government relations, argued that the proposal is unconstitutional, be-cause tobacco is still a legal product that can be advertised to adults. "The tobacco industry is the most regulated group, and to say we are now going to wipe out more than half of the ads, that is a true definition of draconian regulation," he said.
But tobacco opponents applaud the move, as it signals how serious the Bush administration is about reforming the tobacco industry. "There is no question that any retreat from this proposal will be seen as a payback for millions of dollars in campaign contributions from the tobacco industry," said Matthew Myers, president of the Campaign for Tobacco-Free Kids, a public-health advocacy group.