Under a legislative package introduced by Sen. Edward Kennedy, D.-Mass and Mike DeWine, R-Ohio, imagery or color in tobacco magazine ads and in-store signs seen by large numbers of youths would be banned. Warnings would take up most of the real estate on ads (see chart below).
The legislation requires the FDA to promulgate the draconian 1996 rule proposed by former Food and Drug Administration commissioner David Kessler that was later struck down.
Ad groups sent letters to the Senate Health Education Labor and Pensions Committee and to the House Energy and Commerce Committee (which is considering an identical version of the legislation) urging changes.
The letter called the legislation "a de facto ban on advertising" and said the Supreme Court since 1996 had made clear that marketers have the right to advertise legal products as long as the messages aren't misleading. "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 letter said.
The letter said a requirement that 20% of ads go to warnings and disclosures would result in "information overload [and]... would literally `seize' a substantial portion of the company's space and conscript it for government-mandated messages."
Ad groups were also debating an expensive legal fight if the legislation passes. "We have sued against it in the past and would consider doing again," said Dan Jaffe, exec VP of the Association of National Advertisers.
fight for principle
Dick O'Brien, exec VP of the American Association of Advertising Agencies, said his group "would think pretty clearly about challenging it. My instinct is we have to challenge it because of the principle of going to text-only advertising."
ANA joined with Four A's in suing to block the intital rule eight years ago. At the time, they argued the curbs were unconstitutional, only to see it overturned for a different reason-the Supreme Court ruled the FDA lacked authority to regulate tobacco.
This time there are twists. When the issue surfaced earlier, tobacco marketers supported the ad groups' challenge, but now tobacco titan Altria, parent of Philip Morris USA, endorses the legislation, which gives the FDA the legal authority to act. The new legislation adds even stronger curbs than eight years ago, allowing state and cities to impose additional ad and signage restrictions, and allowing the FDA to mandate more of the ads include tar and nicotine levels.
Brown & Williamson Tobacco Co. has announced its opposition to the legislation, saying it opposes FDA regulation and the ad curbs would lock in market share. R.J. Reynolds Tobacco Co. likewise opposes it.
What's at stake: Ad groups argue limits on tobacco marketing could set a precedent for limits on marketing of other products.
What's the argument: That while tobacco makers can voluntarily agree to limits, requiring them to accept ad curbs is unconstitutional.
What's being proposed:
* Black-and-white text only for ads except in titles with adult readership exceeding 85% and fewer than 2 million readers under 18.
* Ads and labels must call the product a "nicotine-delivery device"
* Ads must contain a government "brief statement" in addition to the surgeon general's warning.
* Promotional items such as hats or T-shirts containing a brand name or logo are banned, giveaways, rebates or refunds prohibited
* Sponsorship of athletic, musical, social or other cultural events limited to corporate name only.