ANA, AAAA, AAF Send Letter to Senate HELP Committee
The Senate Health, Education, Labor and Pensions (HELP) Committee plans to mark up legislation tomorrow that would impose extremely burdensome, onerous and clearly unconstitutional restrictions on tobacco advertising. Changes to the bill have completely failed to respond to the serious defects in regard to advertising regulations that were contained in the legislation that Senator Kennedy introduced in February. It still contains proposals that legal experts from across the political spectrum have determined are unconstitutional.
To make the committee aware of these numerous serious constitutional infirmities, ANA, along with the American Association of Advertising Agencies and the American Advertising Federation, has sent a letter to the HELP Committee calling on the Committee to reject these proposals. We believe these proposals would create very dangerous precedents for the whole advertising and media communities. Our letter can be viewed after the jump.
July 17, 2007
The Honorable Edward M. Kennedy
Chairman, Committee on Health, Education, Labor, and Pensions
United States Senate
SR-317 Russell Senate Office Building
Washington, DC 20510-2101
Dear Senator Kennedy:
On behalf of the Association of National Advertisers (ANA), the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF), we are writing to express our opposition to several of the marketing provisions of S.625, the “Family Smoking Prevention and Tobacco Control Act.” Attached is a copy of the detailed statement we submitted to the Committee prior to the hearing in February. The proposed changes to the legislation since then have not mitigated our strong concerns.
We take no position
on the provisions of the bill that would generally grant the Food and Drug
Administration (FDA) the authority to regulate tobacco products.
We oppose section 102 of the bill, which would direct the Secretary of Health and Human Services to publish an interim final rule that is “identical in its provisions” to the proposed rule promulgated by the FDA in 1996. Legal experts from across the political spectrum, including Harvard University Law Professor Laurence Tribe, Judge Robert Bork, the American Civil Liberties Union and the Washington Legal Foundation, have all closely examined the proposed rule. All of them agree that the sweeping and unprecedented restrictions in that proposal, which would result in a de facto ban on tobacco advertising, would violate the First Amendment. In fact, the U.S. Supreme Court held in Lorillard Tobacco Company v. Thomas Reilly, Attorney General of Massachusetts, 533 U.S. 525 (2001) that a Massachusetts tobacco regulation that was virtually identical to one part of the FDA proposal was unconstitutional.
Section 201 of the bill would add new disclosure requirements for all tobacco advertising on top of those contained in the FDA’s 1996 proposed rule. In addition, the bill would require the FDA to conduct a rulemaking to determine whether it should mandate the inclusion of tar and nicotine yields in all labels and advertising. All of the various disclosure requirements of S.625 place the government in the role of copywriter. By “seizing” a substantial portion of every tobacco ad for government-mandated disclosures, the bill raises serious First Amendment concerns about “compelled speech” and could result in an unconstitutional “taking” of a company’s commercial property in violation of the Fifth Amendment.
We also oppose section 203 of S.625, which would grant new authority to state and local governments to impose “specific bans or restrictions on the time, place and manner” of tobacco advertisements. Much of the advertising for tobacco products occurs in interstate commerce. Allowing individual states and local governments to impose their own bans or restrictions would result in a crazy-quilt of inconsistent laws, making compliance with state laws virtually impossible.
For all of these reasons, we urge you to remove these marketing provisions from S.625. The government can take strong, effective steps to restrict tobacco sales and access to minors without trampling on the First Amendment.
Thank you for your consideration of our views.
Sincerely,
Daniel L. Jaffe
Executive Vice President
Association of National Advertisers
1120 20th Street, NW, Suite 520-S
Washington, DC 20036
(202) 296-1883
Richard F. O’Brien
Executive Vice President
American Association of Advertising Agencies
1203 19th Street, NW, Fourth Floor
Washington, DC 20036
(202) 331-7345
Jeffry L. Perlman
Executive Vice President
American Advertising Federation
1101 Vermont Avenue, NW, Suite 500
Washington, DC 20005
(202) 898-0089
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