Pushing anti-smoking legislation has proven to be a boon for politicians and activists alike. But will the much-touted tobacco settlement hold up in court?
Cigarette advertising may be losing its patron icons-Joe Camel and the Marlboro Man-but don't expect the controversial category to lose much of its flair for sass and style.
"Creatives love a challenge," says Martin Buchanan, creative director of WestWayne in Tampa, Fla., which works on R.J. Reynolds' cigarette business. "Sometimes boundaries liberate. The tighter the parameters, the more creative you become."
Under the provisions of the proposed tobacco settlement, cigarette manufacturers will no longer be able to use ads with humans or cartoon characters in them. Clinton's proposal for regulation by the Food and Drug Administration further restricts creative work. It bars advertisers from using color and even images in tobacco ads.
Despite the limitations, Buchanan isn't worried about the creative restraints. "Newspapers have been running black-and-white ads for years that are interesting, entertaining and pertinent," he says. "It'll be different. They [the government] put those warnings all over the ad. We'll work around that, too. It's all about free thinking."
Still, the dangers the proposed settlement poses for free speech are considerable. In fact, it is one of the things that disturbs legal experts such as John Fithian, counsel to the Freedom to Advertise Coalition, a forum of seven industry groups-including the American Association of Advertising Agencies, the Association of National Advertisers, the American Advertising Federation and the Outdoor Advertising Association of America. Four of its members have sued the government over FDA jurisdiction as well as First Amendment issues.
"The advertising restrictions should be implemented on a voluntary basis and not be legislated by Congress," says Fithian. "If Congress passes those restrictions into legislation, the First Amendment is implicated."
This is no idle threat. The cause for concern is great, says Fithian. At this juncture, the advertising restrictions are voluntary. In addition to legal issues, the economic impact on ad agencies will be pronounced. If restrictions are enacted into law by Congress, a Pandora's box will be opened that cannot be closed.
"The implications are huge. There are groups and advocates that are just as serious about alcohol, fast cars, high-fat foods. They will use this precedent to accomplish what they want," Fithian explains.
The industry wholly supports other provisions of the settlement, Fithian says, such as support for anti-tobacco measures. "More [free] speech is the answer."
Yet individuals in the ad industry are as divided as those on Capitol Hill. "It is not for the government to decide," insists David Wojdyla, managing partner and creative director of Bozell Worldwide in Chicago. "This issue is about regulating advertising for a legal product. It has nothing to do with smoking."
David Lubars, chief executive officer and chief creative officer of BBDO West, concurs. "From my personal point of view, people who want to smoke know where to get it. They don't need to be romanced and gloried to do so," he says.
"It's a drug issue, an addiction issue," adds Kirk Citron, president of Citron Haligman Bedecarrƒ in San Francisco.
"If it was up to me, cigarettes would be taken off the market. There is no justification to continue selling that product, but then," admits Citron, "I'm pretty anti-tobacco."