The First Amendment and Tobacco Advertising

Senator Ted Kennedy (D-MA), the Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, is holding a hearing today on legislation (S.625, the Family Smoking Prevention and Tobacco Control Act). This legislation grants the Food and Drug Administration (FDA) jurisdiction over tobacco products and advertising. The legislation mandates that the FDA institute and promulgate a rule similar to its 1996 tobacco rulemaking, which was struck down by the U.S. Supreme Court due to the Court’s finding that the FDA had not been provided authority by the Congress to regulate tobacco products. The legislation imposes sweeping and virtually unprecedented restrictions over every aspect of tobacco advertising. While the Congress has the authority to determine which agency should regulate tobacco products, the First Amendment sets strict limits on the types of restrictions that can be imposed on advertising. Unfortunately, S.625 completely violates these limitations.

Experts from across the legal spectrum, from the American Civil Liberties Union to the Washington Legal Foundation, and legal scholars such as Judge Robert Bork, Floyd Abrams, Burt Neuborne, and Larry Tribe have all indicated the severe constitutional problems with the proposed rules. The ANA has submitted testimony to the Senate HELP Committee in conjunction with the American Association of Advertising Agencies and the American Advertising Federation, that spells out the major constitutional infirmities of the legislation. We are calling on the Congress to drop these unconstitutional provisions.