In a lawsuit that's also expected to include tobacco companies and the American Civil Liberties Union, the groups will argue that marketing and advertising restrictions laid out in the bill fail to comply with free-speech protections provided by the First Amendment.
Possible marketing constraints
The Family Smoking Prevention and Tobacco Control bill has been sent to the White House, where President Barack Obama is expected to sign it. The FDA would then have regulatory control over the $150 billion tobacco industry. Oversight would include restrictions on marketing and sales to youth; a ban on all outdoor tobacco advertising within 1,000 feet of schools and playgrounds; a ban on all remaining tobacco-brand sponsorships of sports and entertainment events, as well as on giveaways of nontobacco products with the purchase of a tobacco product; and limiting advertising in publications with significant teen readership and outdoor and point-of-sale advertising -- except in adult-only facilities -- to black-and-white text only.
The ACLU sent a letter to all senators prior to last week's vote, which read: "In the absence of a much more substantial narrowing of the advertising restrictions in a manner directly tied to the goal of reducing youth smoking, we urge the removal of the advertising restrictions set forth in Section 102 of the bill."
The ANA sent a similar letter. Dan Jaffe, exec VP-government relations at ANA, said he expects one of the tobacco companies to take the lead. "It is likely that some of the tobacco companies will challenge some of the legalities of these restrictions and the ANA will have to decide how to go forward. But we will play a role," Mr. Jaffe said. "This creates a substantial precedent that will affect other marketing categories."
Back seat for ANA
The major tobacco companies, including Altria Group's Philip Morris, R.J. Reynolds and Lorillard, have all declined to comment on whether they will file suit. Lorillard has in the past come out strongly in opposition of FDA regulation, but Philip Morris, which only stands to benefit from frozen market share that would result from such ad curbs, has been a lot less vocal on the issue.
From a political perspective, it makes sense for the ANA to take somewhat of a backseat, as its interest isn't in protecting tobacco but preventing a such a precedent from spilling over to other less-polarizing advertisers.
Mr. Jaffe said specifically that the regulations on banning advertising within 1,000 feet of schools and playgrounds, as well as tobacco-brand sponsorships of sports and entertainment events, "are highly likely to be found unconstitutional. The bill is supposed to curtail youth smoking. If a cultural or sporting event is provided only to adults, how can you justify the advertising restrictions? These provisions were not adequately looked at when the bill was written."
Not true, said Matthew L. Myers, president of the Washington-based advocacy group Campaign for Tobacco-Free Kids, one of more than 1,000 organizations -- including public-health groups, faith-based groups and such entities as the American Heart Association and the American Medical Association -- that support the legislation.
"The advertising provisions were carefully crafted to address a very substantial need -- the marketing of the most dangerous product sold in the U.S.," Mr. Myers told Ad Age. "If there is any commercial speech that it is constitutional to restrict, it is the type of tobacco marketing covered by this legislation, in light of the significant record of the way the tobacco industry has marketed in a misleading way and to youths. The reality is, this bill has been debated intensely in the last two Congresses, and no objections were raised until Congress voted on final passage."