Yesterday, the United States Senate passed radical tobacco marketing restrictions similar to those issued by the Food and Drug Administration in 1996 and overturned by the U.S. Supreme Court in 1998. These restrictions would result in a de facto ban on tobacco advertising and violate the First Amendment.
The ANA is extremely disappointed by the Senate's action. Legal experts such as Judge Robert Bork and Harvard’s Laurence Tribe agree that the marketing provisions of the FDA's 1996 proposal violate the First Amendment rights of tobacco companies to communicate with adults. Yet this amendment would direct the FDA to publish a final rule that is identical to the 1996 proposal. Children deserve to be protected from inappropriate material, but the government may not use the guise of protecting children to impose sweeping restrictions on information intended for adults.
But this is not just about tobacco marketing. This amendment goes a long way to create dangerous precedents that are likely to be imposed to restrict other types of advertising using the children’s protection argument. The new restrictions include:
• Requiring all tobacco ads to be in black and white and sets specific type and size requirements;
• Prohibiting the use of promotional items such as hats or t-shirts containing the name or logo of a tobacco product and banning other promotional techniques such as product give-aways or rebates;
• Requiring sponsorship of athletic, musical, social or other cultural events in corporate name only;
• Allowing state and local governments to impose “specific bans or restrictions on the time, place and manner, but not content” of tobacco ads;
• Requiring all ads to contain a government-dictated “brief statement” in addition to the Surgeon General’s warning about the possible dangers associated with the use of tobacco products; and
• Calling on the FDA to conduct a rulemaking to determine whether it should mandate the inclusion of tar and nicotine yields in all labels and advertising.
The Supreme Court held over twenty years ago in the Bolger case that efforts to restrict advertising cannot lower discourse in society to the "level of the sandbox." The Court also rejected treating any category of advertising as less worthy of protection than any other. Therefore, what happens in one area clearly will affect others. ANA will be discussing with the conferees on this legislation the constitutional issues that were ignored or avoided on the floor of the Senate.
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