Ad Groups Band Together to Oppose Tobacco Advertising Restrictions

By Matt Van Hoven 

The Association of National Advertisers (ANA), American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF) have filed a “friend of the court” brief regarding the constitutionality of the Family Smoking Prevention and Tobacco Control Act. The motion was passed by Congress earlier this year and seeks to control, among other things, the way tobacco is advertised. Ultimately the goal is to prevent youth from picking up the habit.

“While the Act claims to be protecting children from tobacco advertising, its sweeping restrictions would impermissibly and unconstitutionally make it virtually impossible to advertise tobacco, a legal product, to adults,” said Dan Jaffe, ANA Executive Vice President.

The restrictions as they relate to advertising, per the GOP:


&#151 prohibiting billboards within 1,000 feet of schools and permitting only black-and-white advertising

&#151 prohibit the distribution of free tobacco products at all sporting or entertainment events, and would permit free samples only in a “qualified adult-only facility”

&#151 requires labels carrying warnings in at least 17-point font or that comprise 70% of the label area, and requires advertisements to carry warnings of at least 20% of the total area (or, in the case of newspaper advertisements, a specific size font related to the overall size of the advertisement)

&#151 gives the FDA the authority to change required statements through a notice-and-comment rulemaking process, pre-empts State or local activities only with respect to the content of tobacco advertising-permitting more stringent State and local regulations on the “time, place, and manner” of advertisements-and imposes a prohibition on television or radio advertisements for smokeless tobacco

&#151 requires tobacco manufacturers to label their products as “sale only allowed in the United States,” and regulates the record-keeping, tracking, and tracing of tobacco products in order to combat illicit activities.

Here’s a list of the “bans” as the ANA, 4As and AAF see it (per their press release).

&#151 Ban all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground;

&#151 Require all permitted tobacco advertising, including direct mail, to be black text on a white background, except in magazines, newspapers or other periodicals with adult readership of 85% or more, or fewer than 2 million readers under the age of 18

&#151 Require all advertisements and labels to identify the tobacco product as a “nicotine delivery device”

&#151 Require all advertisements to contain a government-dictated “brief statement” (in addition to the current Surgeon General’s warning) to serve as a warning about possible dangers associated with the use of tobacco products

&#151 Ban the use of promotional items such as hats or T-shirts containing the name or logo of a tobacco product, and prohibit other promotional techniques such as product give-aways, rebates or refunds

&#151 Require sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience

&#151 Require sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience

&#151 Require all advertisers of tobacco products to fund and participate in a national public education campaign designed to discourage the use of tobacco products by minors. The FDA would require the annual fund established for this campaign to total $150 million

&#151 Require compliance with more stringent requirements as enacted by state and local governments

&#151 Authorize the enactment of additional restrictions seven years after implementation of a final rule if the number of minors who use tobacco products has not decreased by 50% from 1994 levels

And so we don’t bore you, here’s the Library of Congress link to restrictions. Bottom line, there’s more than one way to see these restrictions.

Opening the door to speech restrictions is a slippery slope because each time another precedent is set, freedom of speech is limited minutely. The advertising consortium’s defense will hinge on the possibility that this ruling will lead to further impediment of speech, and therefore should be found unconstitutional.

Though this problem may seem simple, the answer is not. The bill passed in the house 298 to 112 and the Senate 79 to 17 (the remaining votes &#151 21 and 3 respectively &#151 were either not present or not voting), dissenters taking the free speech side and supporters hoping to protect America’s lungs. Interestingly, the Washington State Medical and Association Magazine Publishers of America were in opposition to the bill. A litany of expected organizations supported both sides.

The bill’s executive summary indicates that there is concern regarding infringement “on companies’ First Amendment rights to promote a product” and “restrictions on companies’ constitutional right to market their products.” This is as close as the summary comes to mentioning the First Amendment, indicating the body of Congress doesn’t view this as a speech matter. Nonetheless it offers no solution, meaning the decision is left to the courts &#151 a common practice that flexes the checks-and-balances part of our system.

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