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.

Senate Action Creates Dangerous Precedent

Yesterday, the United States Senate passed radical tobacco marketing restrictions similar to those issued by the Food and Drug Administration in 1996 and overturned by the U.S. Supreme Court in 1998. These restrictions would result in a de facto ban on tobacco advertising and violate the First Amendment.

The ANA is extremely disappointed by the Senate's action. Legal experts such as Judge Robert Bork and Harvard’s Laurence Tribe agree that the marketing provisions of the FDA's 1996 proposal violate the First Amendment rights of tobacco companies to communicate with adults. Yet this amendment would direct the FDA to publish a final rule that is identical to the 1996 proposal. Children deserve to be protected from inappropriate material, but the government may not use the guise of protecting children to impose sweeping restrictions on information intended for adults.

But this is not just about tobacco marketing. This amendment goes a long way to create dangerous precedents that are likely to be imposed to restrict other types of advertising using the children’s protection argument. The new restrictions include:

• Requiring all tobacco ads to be in black and white and sets specific type and size requirements;
• Prohibiting the use of promotional items such as hats or t-shirts containing the name or logo of a tobacco product and banning other promotional techniques such as product give-aways or rebates;
• Requiring sponsorship of athletic, musical, social or other cultural events in corporate name only;
• Allowing state and local governments to impose “specific bans or restrictions on the time, place and manner, but not content” of tobacco ads;
• Requiring all ads to contain a government-dictated “brief statement” in addition to the Surgeon General’s warning about the possible dangers associated with the use of tobacco products; and
• Calling on the FDA to conduct a rulemaking to determine whether it should mandate the inclusion of tar and nicotine yields in all labels and advertising.

The Supreme Court held over twenty years ago in the Bolger case that efforts to restrict advertising cannot lower discourse in society to the "level of the sandbox." The Court also rejected treating any category of advertising as less worthy of protection than any other. Therefore, what happens in one area clearly will affect others. ANA will be discussing with the conferees on this legislation the constitutional issues that were ignored or avoided on the floor of the Senate.