Ad Groups Lash Out at Tobacco Legislation

ANA, AAF, 4A's Call Kennedy Proposal Unconstitutional

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WASHINGTON (AdAge.com) -- Ad groups are pinning the "unconstitutional" label on Sen. Edward Kennedy's bid to let the Food and Drug Administration regulate tobacco and to impose a decade-old plan that imposes draconian marketing curbs on tobacco advertising.
Sen. Edward Kennedy
Sen. Edward Kennedy Credit: Mark Murrmann

In an eight-page letter to the Massachusetts Democrat, who chairs the Senate Health Education Labor and Pensions Committee, the groups argue that the ad curbs -- which would limit tobacco makers to black-and-white text ads in most magazine ads and store signs; require additional warning labels; bar outdoor ads within 1,000 feet of schools or playgrounds; and ban giveaways of promotional items like hats or T-shirts -- are unconstitutional.

The ad groups had two choices, to do nothing or to wade into what could be a lengthy Supreme Court battle.

'Massive censorship'
"While the government has a legitimate interest in fighting the use of tobacco products by minors, the FDA's proposed regulations sweep far too broadly and result in massive censorship of truthful speech aimed at adults," the Association of National Advertisers, the American Advertising Federation and American Association of Advertising Agencies said in the letter, which was sent yesterday.

The ad groups said the Supreme Court has previously rejected in a Massachusetts case the 1,000-foot limit and so-called black-and-white "tombstone" advertising restrictions and that disclosure requirements would "overload" advertisements and likely be unconstitutional.

"Advertising is not free. The multiple disclosure requirements would literally 'seize' a substantial portion of the company's space and conscript it for government-mandated messages," the ad groups wrote.

Fear for other industries
The letter makes it clear the ad groups' biggest concern is that the tobacco curbs would extend to food or beverage marketers, including spirits advertisers. "Don't start down this road to content-based censorship of advertising," the letter said.

The letter arrived as the Senate committee today heard calls for greater regulation of tobacco ads at a hearing.

American Cancer Society President Dr. Elmer Huerta said the Master Settlement Agreement tobacco makers signed to resolve state lawsuits didn't go far enough. As other voluntary advertising limits kicked in, tobacco makers have turned more to magazines and to in-store promotion, he said.

"The MSA did not place any restrictions on advertising in magazines," he said, adding that the agreement "did not establish an enforceable set of restrictions that would eliminate advertising that has the greatest effect on children."

'Right thing to do'
Mr. Kennedy called his legislation the "right thing to do for America's children."

"If we are serious about reducing youth smoking, FDA must have the power to prevent industry advertising designed to appeal to children wherever it will be seen by children," the senator said. "This legislation will give FDA the authority to stop tobacco advertising that glamorizes smoking to kids."

The 11-year-old regulations Mr. Kennedy is proposing are back because a court battle over their constitutionality never materialized when they were first proposed. Instead, the Supreme Court set aside the regulations when it ruled the FDA had no authority to regulate tobacco.
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