ANA Opposes Tobacco Advertising Legislation that Continues to Chart Path through Congress

The House Energy and Commerce Subcommittee is marking up H.R. 1108 on Thursday.  This bill would enact extraordinarily sweeping rules relating to tobacco products and advertising.  The rules relating to advertising would ban all outdoor advertising within 1,000 feet of a school, reduce ads to black text on a white background, require new disclosure requirements that would take up at least 20% of the ad, and remove federal preemption provisions that would allow the states to adopt even stricter regulations.

While ANA takes no position on tobacco regulation in general, we take strong exception to the advertising provisions.  Experts from across the legal spectrum have noted that the unprecedented restrictions relating to advertising in the proposed rule would amount to a de facto ban on ads and violate the First Amendment.  As the Supreme Court held in the Central Hudson case, which it has repeatedly reaffirmed, restrictions on advertising must be “no more extensive than necessary” to meet the government’s interest.  This means that truthful, nondeceptive advertising about a legal product (and tobacco products remain a legal product for adults) is entitled to strong First Amendment protection no matter what product is being discussed.  It is also important to note that the Court struck down similar regulations promulgated by the Massachusetts attorney general in the Lorillard case in 2001.

 

ANA, along with the American Association of Advertising Agencies and the American Advertising Federation, have written to the committee expressing these views, and discussing many of these issues in detail.  Our letter can be read at http://www.ana.net/advocacy/getfile/1305.. We hope that the subcommittee will   considers these arguments as it analyzes the legislation and removes the unconstitutional provisions.