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By Published on .

Just hours after Mayor Rudolph W. Giuliani signed what may be the nation's toughest tobacco marketing curb last week, advertising groups filed suit in the U.S. District Court in New York. The suit contends the city's own studies demonstrate existing laws barring underage sales are not being effectively enforced.

"Far more direct alternative means, which do not even implicate First Amendment or other constitutional concerns, exist . . . [that] would achieve the [New York City] Council's asserted aim directly without burdening any constitutionally protected speech," said the suit.

The lawsuit also contends the U.S. Bureau of Alcohol, Tobacco & Firearms or the Federal Trade Commission has sole rights to regulate tobacco advertising and labeling.

An earlier appellate court decision struck down other New York City tobacco ad curbs, also saying the federal government has the sole right to regulate.


As expected, the ad groups were joined by retailer organizations in the action (AA, Jan. 5). Their case states that cities want-ing to impose ad curbs must demonstrate, according to U.S. Supreme Court rulings, that they have no alternative means of reducing underage smoking.

"The New York legislation virtually makes New York City an advertising-free zone" for tobacco, said Floyd Abrams, an attorney representing the Association of National Advertisers, the American Advertising Federation and the American Association of Advertising Agencies, among other ad groups. He added: "The city has legislation on its books that bans the sale [of tobacco to minors] and [has] a study that determined there is lax enforcement of the law. It seems there is an obvious way to deal with this without First Amendment issues."Mr. Abrams said the breadth of the New York ordinance makes it a good test case. Baltimore and other cities that have limited outdoor ads have excluded industrial areas.


The lawsuit came as the already-strong pressure for action on tobacco in Washington continued to mount. News stories about the release of 80 marketing documents from R.J. Reynolds Tobacco Co. -- obtained from lawyers in a now-settled California court case -- prompted a statement by President Clinton.

"The documents show more than ever why it is absolutely imperative that Congress take action now to get tobacco companies out of the business of marketing cigarettes to children," the president said.

House Commerce Committee Chairman Thomas J. Bliley Jr. (R., Va.), scheduling the opening 1998 hearing for his committee into tobacco, asked the CEOs of every major tobacco company to come to Washington to testify Jan. 29.

The last such testimony produced a grand jury investigation that is continuing.

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