House Tobacco Bill Violates the First Amendment

Sometime this week, the U.S. House of Representatives is likely to consider a major tobacco bill, The “Family Smoking Prevention and Tobacco Control Act.” (H.R.1108). This bill gives the Food and Drug Administration (FDA) virtually complete regulatory control over all aspects of the tobacco industry, including the marketing of tobacco products.

While Congress has the power to decide how to regulate the tobacco industry, it must do so in ways that do not violate the Constitution. We believe there are several very serious defects with the bill, including marketing restrictions which violate the First Amendment.

ANA, the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF) delivered detailed comments to the entire House of Representatives last week, outlining two major concerns with the bill. First, we believe the numerous marketing restrictions in the bill violate the First Amendment. We cited legal experts from across the political spectrum plus a U.S. Supreme Court decision (the Lorillard case) in which a Massachusetts provision identical to part of H.R.1108 was struck down. Second, we believe that regulatory authority over tobacco advertising should remain with the Federal Trade Commission (FTC), which has experience and expertise in this area.

These constitutional issues are fundamental and these serious defects in the bill need to be corrected before any final action is taken on this legislation.

A companion version of the bill (S.625) awaits floor action in the Senate. We will continue to oppose the marketing provisions of these bills.