The Food and Drug Administration's proposal requiring tobacco companies to place cadavers, coffins and other horrific images of what could happen to smokers on cigarette packs and ads is stirring up First Amendment concerns among the advertising community.
The fight stems from the Family Smoking Prevention and Tobacco Control Act, which called for the FDA to set rules for placing larger and more visible graphic health warnings on tobacco packaging and advertisements. The FDA came up with several graphic pictures to accompany nine warnings, along with specifications for how much space the warnings and pictures should take up on packaging and advertisements.
Comments on the proposed rules were due Tuesday, Jan. 11. The Association of National Advertisers argued in its filing that the new text and graphic requirements run afoul of the First Amendment and would convert product packages and advertisements into platforms for the government's viewpoint.
Though smoking may be out of favor, it is still a legal product. "The proposal goes way beyond what is factual and neutral. It not only violates the First Amendment, it creates precedent for the advertising sector," said Dan Jaffe, evp of government relations for the ANA. "There has never been anything like this before in this country."
The precedent the new rules set is equally scary to advertisers. "Somebody else is going to want a government message placed on other products like alcohol or violent videos," Jaffe noted. "If this goes through, it would be a very significant step."
The proposal is likely to end up in court. Last year, the ANA filed a friend of the court brief with the U.S. Court of Appeals for the Sixth Circuit in a lawsuit brought by six major tobacco companies challenging the marketing restrictions in the act.