The decision blocked the Clinton administration's unprecedented plan for imposing a crushing censorship regime on tobacco advertising. In the court battle to overturn the FDA ad rules, we used a "one-two" punch. First, we argued the jurisdictional issue. We followed up with First Amendment arguments based on a long list of Supreme Court rulings that the Constitution does not allow any government agency to lower discourse in society "to the level of the sandbox" in the name of protecting kids.
Our jurisdictional arguments, however, proved to be a knockout blow to the FDA's sweeping censorship program. Therefore, the constitutional issues never had to be addressed by the judge in Greensboro.
UNLAWFUL FROM START
The administration's plan clearly was unlawful from the start. The Association of National Advertisers joined in challenging the FDA rule to affirm that we are a nation of laws, not edicts. We could not stand idly by and watch a government agency grab power Congress never intended it to have.
Congress intended that the Federal Trade Commission stop false, deceptive or unfair advertising of tobacco or any other product. The FTC has all the power necessary to stop advertising that targets an illegal, underage audience. But the Clinton administration tried an end run around the law. Now, U.S. District Judge William Osteen has stopped the administration in its tracks.
ANA and other members of the Freedom to Advertise Coalition, a coalition of media and advertising associations, will fight an expected appeal of the ruling, which would be heard in the 4th U.S. Circuit Court of Appeals.
ANA and FAC in February argued in opposition to the FDA rule at a federal court hearing in Greensboro. Make no mistake, ANA supports efforts to stop youth smoking; but the administration's anti-advertising proposals went far beyond this goal, making it virtually impossible to advertise to adults. In addition to the FDA jurisdictional issue, the advertising coalition pointed out that:
The sweeping nature of the proposed FDA restrictions violated First Amendment protections against government curbs on speech that are "more extensive than necessary" to achieve the government's aim;
The Supreme Court has ruled that the use of pictures and other illustrations in advertising are fully protected by the First Amendment, and;
Blanket restrictions on the use of colors are equally unconstitutional.
The precedents that would have been set-had the FDA's sweeping restrictions on colors, pictures and illustrations in all media been allowed to stand-would have been proposed for products ranging from food to alcohol to caffeinated products.
BALTIMORE BAN STANDS
A few days after our victory in Greensboro, the Supreme Court announced that it will not review a lower court ruling that upheld restrictions on outdoor advertising of tobacco and alcohol products in Baltimore. Some are claiming that the Supreme Court's action is a sign the high court is retreating from its recent strong support for commercial free speech.
But such a conclusion is hasty at best and is likely to be proved wrong. The Supreme Court's own rules make clear that the decision not to review a lower court case does not change legal precedent. Nor does it signal approval of a lower court's decision. The Supreme Court often waits for more than one federal appeals court to grapple with an issue before accepting review. In fact, the high court in the past has left standing speech limitations, only to rule later that such restrictions are unconstitutional. Therefore, other states or localities should not misread the Baltimore case as a green light to suppress advertising.
The Supreme Court's strong protection of advertising remains intact. We will continue to fight hard to protect the First Amendment rights of advertisers. The FTC has every right under the law to seek to restrict or ban any advertising that targets illegal audiences, such as the underaged. Unlawful, unconstitutional rules, however, cannot be accepted.
Mr. Jaffe is exec VP, Association of National Advertisers, Washington.