The U.S. Senate on Health, Education, Labor and Pensions (HELP) Committee is scheduled to vote next week on a major tobacco bill, the “Family Smoking Prevention and Tobacco Control Act.” (S.982). This bill, introduced by Senator Edward Kennedy (D-MA), the Chairman of the committee, contains massive crushing and unprecedently broad advertising restrictions. It gives the Food and Drug Administration (FDA) virtually complete regulatory control over all aspects of the marketing of tobacco products. The bill mandates the FDA to promulgate a rule to; · Ban all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground; · Require all permitted tobacco advertising, including direct mail, to be black text on a white background, except in magazines, newspapers or other periodicals with adult readership of 85% or more, or fewer than 2 million readers under the age of 18; · Require all advertisements and labels to identify the tobacco product as a “nicotine delivery device”; · Require all advertisements to contain a government-dictated “brief statement” (in addition to the current Surgeon General’s warning) to serve as a warning about possible dangers associated with the use of tobacco products; · Ban the use of promotional items such as hats or T-shirts containing the name or logo of a tobacco product, and prohibit other promotional techniques such as product give-aways, rebates or refunds; · Require sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience; · Require all advertisers of tobacco products to fund and participate in a national public education campaign designed to discourage the use of tobacco products by minors. The FDA would require the annual fund established for this campaign to total $150 million; · Require compliance with more stringent requirements as enacted by state and local governments; and · Authorize the enactment of additional restrictions seven years after implementation of a final rule if the number of minors who use tobacco products has not decreased by 50% from 1994 levels. Congress has the power to decide how to regulate the tobacco industry, but it must do so in ways that do not violate the Constitution. ANA, the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF) delivered detailed comments to the members of the HELP Committee outlining our major concerns with the bill. First, we believe the numerous marketing restrictions in the bill clearly violate the First Amendment. The bill directs the Secretary of HHS to publish a final rule that is identical to the proposed rule adopted by the FDA in 1996. It provides no opportunity for outside groups, within a fair regulatory rulemaking process, to be heard on the constitutional defects of the mandated rule. In fact, legal experts from across the political spectrum agree that these unprecedentedly broad restrictions would result in a defacto ban on tobacco advertising. The mandated rule also would allow thousands of state and local governments to impose additional more stringent advertising restrictions beyond those contained in the mandated rule, making national advertising virtually impossible. The bill also ignores a number of major developments since the FDA’s 1996 proposal. The U.S. Supreme Court has made clear in a series of cases that every legal product, including tobacco, has the same level of First Amendment protection. In 2001 in the Lorillard case, the Supreme Court struck down a Massachusetts provision identical to part of the mandated FDA rulemaking proposal. Also, the tobacco industry voluntarily agreed to a broad range of serious changes in their marketing practices as part of the Master Settlement Agreement with the state attorneys general in 1998 – an agreement that raises no First Amendment concerns. This is very troubling legislation that could create broad precedents adversely affecting advertising for many other controversial categories. We urge members of the Senate HELP Committee to drop the unconstitutional marketing provisions from S.982. If the committee fails to do so, the Congress should, at the very least, require a new, fair and open rulemaking by the FDA. This rulemaking would allow the FDA to provide a fair hearing to those groups impacted by these restrictions and to take into account the many important Supreme Court and other judicial decisions affecting this area since the 1996 proposal. The government can take strong steps to regulate tobacco sales and access to minors, but it must do so without trampling on the First Amendment.
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