ANA Regulatory Rumblings

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.

The CPSC Reform Act

This week, the United States Senate is considering The CPSC Reform Act (S. 2663), a bill to reauthorize the Consumer Product Safety Commission, the federal agency that protects consumers, including children, from unreasonable risks posed by consumer products.  Protecting the public is a very important governmental function.  However, the Senate’s bill contains some provisions that are overly restrictive and would have a direct and negative effect on advertisers.

The provisions would require manufacturers of children’s toys or other products containing small parts to carry a warning in advertisements, including on internet and catalogue ads, about the product’s hazards. 

ANA has two problems with these proposed requirements.  First, requiring warnings everywhere a product is discussed is excessive.  Hazard warnings are usually displayed on a product’s packaging or elsewhere at the point of sale.  It’s unlikely that requiring warnings in advertisements, which are not viewed immediately prior to purchase, would do anything to enhance consumer safety.  Additionally, some products require multiple warnings, which will just add to consumer confusion and not to consumer protection.

Second, the excessiveness of the requirements raises constitutional concerns.  The U.S. Supreme Court has held in the Central Hudson case and in numerous others that regulation in the commercial speech arena must be “no more extensive than necessary” to achieve the government’s ends.  Limiting speech can’t, as Justice Sandra Day O’Connor wrote for the Court in its 2003 Western States decision, the government’s “first resort.” 

Instead, we have urged the Senate to consider the House of Representative’s approach to this issue.  Rather than mandating requirements for all ads, the House version allows the CPSC to conduct a rulemaking to determine what types of warnings should be required.  A rulemaking would allow for more flexibility and provide the affected industries more input into the eventual rules.   

We have sent a letter to all 100 members of the Senate detailing these concerns.  You can read that letter at http://www.ana.net/advocacy/getfile/1301.  We hope that the Senate will take our views into account as they consider this important legislation.