ANA Regulatory Rumblings

Tobacco Markup

The House of Representatives’ Committee on Energy and Commerce has reported favorably to the full House an amended version of H.R. 1108, the Family Smoking Prevention and Tobacco Control Act.  The final vote in favor was 38-12, with 11 Republicans joining the Democratic majority.  While there were no amendments offered that affected the troublesome advertising provisions in the bill, there were a few interesting exchanges during the markup that related directly to their constitutionality. 

Rep. Steve Buyer (R-IN) first asked whether the “findings” in the bill, couched as fact, were written in a way to satisfy the U.S. Supreme Court’s Central Hudson test.  Specifically, findings #30 and #31 state that the advertising provisions of the FDA’s final rule of August 28, 1996, which the bill would require the FDA to implement, are “substantially related to” and would “directly advance” the government’s interest in preventing youth smoking.  The findings also contend that “less restrictive and less comprehensive approaches have not and will not be effective in reducing the problems addressed by such regulations.”  As Rep. Buyer noted, however, since the tobacco industry reached the Master Settlement Agreement with 46 state attorneys general in 1998, youth smoking rates have declined.  In light of this decline, he asked whether it was still true that “less restrictive means” were not effective.   Rep. Henry Waxman (D-CA), the main sponsor of H.R. 1108, responded that the government’s interest in this area remains substantial, and this interest has been recognized by the Supreme Court. 

In this first exchange, Rep. Buyer also contended that the regulations went beyond the government’s asserted interest in lowering youth smoking and restricted speech about a lawful product to an adult audience, and thus violated the Central Hudson test.   In response, Rep. Waxman claimed that the provisions were narrowly tailored and would not affect advertising targeted to a primarily adult audience, such as in magazines directed to adults. 

Rep. Buyer also noted in a subsequent exchange that the Supreme Court struck down similar restrictions on advertising as those in the FDA rule in its 2001 decision in Lorillard v. Reilly.  In Lorillard, the Court struck down a Massachusetts law that banned outdoor ads within 1,000-feet of schools, parks and playgrounds and also restricted point-of-sale advertising for tobacco products.  In finding that the law was not narrowly tailored to satisfy the First Amendment, Justice Sandra Day O’Connor also wrote for the Court that the FDA rule raised similar issues.  Rep. Waxman argued that the Court struck down a state law in Lorillard and that the federal interest was different. 

Rep. Nathan Deal (R-GA) and Rep. Joe Barton (R-TX), the Committee’s ranking Republican, also warned that the advertising provisions raise First Amendment issues and could be subject to court challenge.  ANA, in conjunction with the American Association of Advertising Agencies (AAAA) and American Advertising Federation (AAF), filed extensive testimony with the committee that lays out all of the constitutional issues with the legislation’s provisions, and notes that there is opposition from leading constitutional experts across the political spectrum, from Judge Robert Bork to Professor Lawrence Tribe, to these proposals.  That testimony can be viewed at http://www.ana.net/advocacy/content/1097. 

ANA believes that these advertising provisions clearly violate the First Amendment and the Supreme Court’s Lorillard decision. 

It is not clear yet when the bill will be scheduled for floor action.  We hope that the committee will continue to work on revising the advertising provisions so that they do not unconstitutionally restrict truthful, nondeceptive speech about a product which is legal for adults to purchase. 

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.

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.

ANA Argues That Government Regulation of Violent Programming Violates First Amendment

The Senate Commerce Committee is holding a hearing today on violence in the media. On April 25^th, the FCC issued a report urging Congress to define and regulate “excessively violent” TV programming. This effort would violate the First Amendment and place the government in the role of censor to decide the content of vast amounts of media that enter the homes of virtually every American. This would set a very dangerous precedent for both commercial and political speech.

ANA and our sister associations, the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF) have filed comments with the Senate Commerce Committee describing the major constitutional defects with this type of effort to regulate TV programming. We also included a copy of the comments that were filed with the FCC in 2004 on these issues. All of those comments are available here.

With the V-chip and parental control features provided by cable and satellite providers, parents already have effective tools to choose which TV programs they wish to receive or exclude. 

We sincerely hope the Congress will reject the invitation of the FCC to participate in this radical and unconstitutional effort to regulate TV programming. 

Drug Advertising Amendment Defeated: Next Steps

The Senate Health, Education, Labor and Pensions (HELP) Committee recently voted down an amendment to the drug safety bill (S. 1082) that would have amended provisions in the bill relating to direct-to-consumer prescription drug advertising.  The amendment, which was sponsored by Senators Pat Roberts (R-KS), Richard Burr (R-NC), and Tom Coburn (R-OK), was defeated on an 11-10, straight party line vote. 

The ANA opposed two key provisions of S.1082.  The first authorizes the FDA to impose a two-year moratorium on advertising for new prescription drugs.  The second requires certain government-mandated warnings in new prescription drug ads, even if there are no known adverse events associated with the drug and even if the drug ad contains a fair balance between the benefits and risk. 

We believe these proposals are clearly unconstitutional.  In a letter to the members of the HELP Committee, we argued that the provisions violate the U.S. Supreme Court’s Central Hudson test, which requires that restrictions on advertising must be “no more extensive than necessary” to promote the government’s interest.  A two-year blanket ban on speech almost certainly violates this requirement. 

We also argued that the provisions completely overlook the tremendous value that prescription drugs ads provide the public.  Ads often encourage patients to discuss health issues with their physician. Studies by the FDA and Prevention magazine demonstrate that as many as 65 million Americans went to a doctor in response to a prescription drug ad, and of this number, over 30 million asked the doctor about a health condition that they had never discussed with a physician before.  On many occasions, the physician identified serious, previously undiagnosed conditions, including high blood pressure, high cholesterol, or diabetes during the visit. 

Frozen in the Past

The Kaiser Family Foundation held a public forum today to release an important report entitled, Food for Thought: Television Food Advertising to Children in the United States. According to Kaiser, “The purpose of this study is to paint a picture of the current landscape of food advertising to children on TV, to help inform the efforts of policymakers and the food and media industries and to provide a benchmark for measuring change in the years ahead.”

The Kaiser report may be a useful snapshot of food advertising on TV in 2005, but it is certainly not a “current” representation of the present landscape. The vast bulk of the food commercials analyzed in the report were collected from May through July 2005. As anyone who has been following these issues knows, there have been enormous changes in the marketplace over the last 18 months. In addition, important segments of the advertising community have pledged unprecedented further changes in the coming year.

Let’s take a quick look at how the marketplace is rapidly changing:

• According to a Grocery Manufacturers/Food Products Association survey of their members, in just the last several years, food and beverage companies have responded to marketplace demand by introducing 10,000 products that provide new low-calorie servings and/or improved health profiles.

• Restaurants, also responding to this demand, have provided numerous healthier menu options, and increasingly, reduced portion size items. In addition, many quick-service restaurants have made salads a major selling focus and promoted juices, yogurt, and low- fat milk as new serving offerings. One quick-service restaurant sells about 50 million pounds of apples annually, much of this as part of their children’s menu.

• As part of the advertising community’s self-regulatory initiatives, 11 companies, representing approximately 2/3 of all food advertising to kids, pledged through the Children’s Food and Beverage Initiative, overseen by the Council of Better Business Bureaus, to devote at least half of their advertising directed to children to promote healthier lifestyles or good nutrition. Participants in the Initiative are Cadbury Schweppes USA; Campbell Soup Company; The Coca-Cola Company; General Mills, Inc.; The Hershey Company; Kellogg Company; Kraft Foods, Inc.; Masterfoods; McDonald’s; Pepsi-Co, Inc.; and Unilever.

• The advertising community, through its public service arm, The Advertising Council, also has greatly ramped up its public service efforts in regard to anti-obesity initiatives. The Ad Council has partnered with the Department of Health and Human Services (HHS) since 2004 on obesity prevention Public Service Announcements (PSAs). The “Small Steps” campaign was launched in 2004 and was expanded to target children in 2005. Since the campaign launch, the PSAs have received more than $270 million in donated media support and the “Small Steps” website attracted an average of 190,000 visits per month during 2006. Just last month, The Ad Council launched a new round of PSAs featuring Shrek characters, urging children to get more exercise.

We Have a Positive Story to Tell

Wednesday was the first formal meeting of a joint government/industry Task Force on Media and Childhood Obesity. The task force was formed several months ago by Senators Sam Brownback (R-KS) and Tom Harkin (D-IA) and FCC Chair Kevin Martin and FCC Commissioner Deborah Tate. It’s intended to be a non-adversarial setting where industry groups, public interest groups and government officials can work together on solutions to the childhood obesity crisis.

ANA is a member of the Executive Committee of the Task Force and I gave a presentation describing the various steps the marketing community has taken to address childhood obesity. My colleague with the Grocery Manufacturers/Food Product Association noted that over the last five years, food and beverage companies have introduced more than 10,000 new or reformulated products that are healthier. A representative from Disney described some of the efforts being made by media companies. Collectively, our industry has spent billions to respond to the childhood obesity crisis.

While more remains to be done, we have a very positive story to tell.

In fact, I believe the marketing community has collectively done more to respond to the childhood obesity crisis than any other segment of society. I specifically challenged the federal government and state and local governments to step up to the plate and increase their efforts to fight this problem. My statement cited some specific areas for progress.

The Task Force will provide us with an opportunity to take a comprehensive look at what’s already being done and to identify gaps that still need to be filled.

National Medical Association Sees Positive Value in Prescription Drug Advertising

The National Medical Association (NMA) today released the results of a recent survey that overwhelmingly demonstrates that African-American physicians see a positive value in prescription drug advertising. According to the report published in the Journal of the National Medical Association, members of NMA believe that DTC advertising provides substantial educational benefits to consumers, particularly in underserved communities. The African-American doctors also believe that DTC advertising helps, rather than hurts, the doctor-patient relationship.

The new report found that NMA members are even more positively supportive of DTC ads now than in a similar survey in 2001. According to the study, 66% of the doctors surveyed attested to the positive benefits that prescription drug ads provide patients. This is up from the 55% positive finding contained in a survey carried out by NMA in 2001. The report acknowledged the numerous steps taken by the pharmaceutical industry over the last several years to address concerns about some DTC ads.

The NMA report is important news, particularly as some members of Congress are proposing sweeping new restrictions on this important category of advertising.

Given the critical role that DTC advertising can play for patients including those who are poor or in underserved communities, we agree with the NMA that there should be more prescription drug advertising, not less.

The First Amendment and Tobacco Advertising

Senator Ted Kennedy (D-MA), the Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, is holding a hearing today on legislation (S.625, the Family Smoking Prevention and Tobacco Control Act). This legislation grants the Food and Drug Administration (FDA) jurisdiction over tobacco products and advertising. The legislation mandates that the FDA institute and promulgate a rule similar to its 1996 tobacco rulemaking, which was struck down by the U.S. Supreme Court due to the Court’s finding that the FDA had not been provided authority by the Congress to regulate tobacco products. The legislation imposes sweeping and virtually unprecedented restrictions over every aspect of tobacco advertising. While the Congress has the authority to determine which agency should regulate tobacco products, the First Amendment sets strict limits on the types of restrictions that can be imposed on advertising. Unfortunately, S.625 completely violates these limitations.

Experts from across the legal spectrum, from the American Civil Liberties Union to the Washington Legal Foundation, and legal scholars such as Judge Robert Bork, Floyd Abrams, Burt Neuborne, and Larry Tribe have all indicated the severe constitutional problems with the proposed rules. The ANA has submitted testimony to the Senate HELP Committee in conjunction with the American Association of Advertising Agencies and the American Advertising Federation, that spells out the major constitutional infirmities of the legislation. We are calling on the Congress to drop these unconstitutional provisions.