Not only did ad groups warn that curbs -- including a ban on the use of color and imagery in most tobacco advertising -- are unconstitutional, but R.J. Reynolds also chimed in with a TV and print push in Washington and other markets using plate spinners to convince lawmakers that the FDA already has too many things on its plate. Those arguments went unheeded as the House Energy and Commerce Committee sent the legislation to the floor, where its co-sponsorship by more than 200 members would seem to assure its passage.
Senate vote on track
A Senate committee has already approved similar legislation from Sen. Ted Kennedy, D-Mass., and a Senate floor vote is expected this spring.
The House legislation was offered by Rep. Henry Waxman, D-Calif. It in effect switches the federal government's oversight of tobacco from the Federal Trade Commission to the FDA and directs the FDA to implement the tobacco ad curbs first proposed by then-Commissioner David Kessler in 1996. The Supreme Court eventually ruled the FDA didn't have authority to issue the regulations.
The latest legislation -- besides providing the needed authority -- also bans the flavoring of cigarettes, excluding menthol. If signed by President Bush, it could set up the possibility of a legal challenge by ad groups worried that it could set a precedent for similar ad curbs on other products. Ad groups were part of a challenge to the original Kessler rule.
Bush support unclear
President Bush's support, however, is far from certain, and the FDA has expressed concern the legislation would be hard to implement.
In advance of today's vote, R.J. Reynolds has been running the ad campaign from Schubert Flint Public Affairs, Sacramento, Calif. One TV spot (www.fdaconcerns.org) features the juggler and is running nationally on CNN and Fox News Channel, along with broadcast stations in Washington, D.C., and some congressional districts.
|A print ad from R.J. Reynolds parent, Reynolds American Inc.|
"We are raising the question of congressional priority and whether Congress should be more concerned about food and prescription drugs," said Maura Payne, VP-communications for R.J. Reynolds parent Reynolds American Inc. The company declined to discuss spending or say how long the effort would continue.
R.J. Reynolds contends that the new advertising and marketing curbs, together with existing limits, creates barriers that unfairly protect market leader Philip Morris USA from significant competition. It argues they could also make it harder to offer safer cigarettes.
Advertising groups contend the legislation amounts to a de facto ban on tobacco advertising, and in a letter to the committee questioned its constitutionality. They noted not only the ban on imagery but the legislation's requirement that 20% of ads be used for warning labels.
Some questions about constitutionality were raised at today's committee meeting by Reps. Steve Buyer, R-Ind., and Nathan Deal, R-Ga. Mr. Buyer suggested that the Supreme Court in a Massachusetts advertising case had overturned similar regulations and warned that the same fate would befall the new legislation.
Rep. Frank Pallone, D-N.J., suggested that moving oversight to the FDA was logical, saying it was crazy that the agency regulates toothpaste but not tobacco.
Mr. Waxman called the vote "a historic day in the fight against tobacco." He said the FDA has the "right combination of scientific expertise, regulatory experience" to put limits on tobacco marketing.
Rep. Joe Barton, R-Texas, the ranking Republican on the committee, however, questioned the move. "It's not the FDA's role to be the cigarette cop on the beat," he said.