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.
