In remarks that preceded these excerpts, Mr. Pitofsky told the committee that Congress should adopt as law the tobacco advertising regulations published by the Food & Drug Administration in 1996 and that it should direct FTC and FDA to jointly regulate tobacco advertising and marketing.
The FTC chairman said he believed the FDA rules were narrowly drawn and could be successfully defended in court if they were challenged as unconstitutional under the First Amendment.
The FDA rules include a ban on outdoor advertising of tobacco products within 1,000 feet of a school and major limits on the appearance of tobacco ads in magazines where 15% or more of the readers are too young to legally buy tobacco products. (Under the FDA rules, only b&w text could appear in such advertising.) The rules also bar giveaways of merchandise and continuity programs.
In the following exchange, Sen. McCain questioned the ability of federal regulators to determine which tobacco ads influence young people, and expressed his concern that the focus on advertising controls ignored other powerful influences on youth smoking.
Sen. McCain [to Mr. Pitofsky]: In all due respect, Mr. Chairman, children frequent highways. Children frequent the streets. Children frequent places where adults frequent. One of the things I am convinced of is that advertising is in the eye of the beholder. Some things [that] we are hearing [are] the tobacco companies saying, "This does not appeal to children," this picture of an attractive young woman or man with a cigarette, and others saying it does.
It is very difficult what you are asking your agency . . . and, frankly, members of Congress, to decide: What it is that is attractive to young people. Is it a black and white picture? A color picture? Is it a picture of a race car? . . . Frankly, it is a very difficult thing to decide.
A thousand feet from a school? Why not 2,000 feet? Why not 5,000 feet? Is 1,000 feet from a school in Manhattan different from 1,000 feet from a school in Window Rock.
You get into enormous difficulties in deciding what is advertising that is going to target children or not. [Holding up an ad, Sen. McCain asked Mr. Pitofsky whether it appealed to children.]
It is a picture of a young woman sitting on a young man's lap.
Mr. Pitofsky: It doesn't bother me at all.
Sen. McCain: I bet [on] our next panel [of witnesses], at least one of them will say [this ad] is very enticing to young people. It depends on who the person is [viewing it].
The point I make is a very important one. For you to sit there and say that [the government] can go restrict certain kinds of advertising and [that] we don't have to worry about liability flies in the face of what we are dealing with here.
Mr. Pitofsky: Let me add to the very good points that you made.
You can't restrict adults' right to information by saying that some people would limit the First Amendment rights of the speaker and the person spoken to. But how would we feel about advertising on Saturday morning TV. How would we feel about seeing tobacco products -- chewing tobacco, cigarette products -- advertising on cartoon shows on Saturday morning?
Sen. McCain: In the movie "Titanic," the main players were smoking practically the entire 3 1/2-hour movie. I don't think that violates the First Amendment. Do you think that is fine? That every hero and heroine of young people smokes cigarettes in every movie we see; but we shouldn't have a billboard anywhere near a school because . . . It doesn't compute.
Mr. Pitofsky: It's one thing to say it is fine. I don't think it is fine. The question is whether or not restriction of that type of behavior is permissible . . .
Sen. McCain: You don't think that Bruce Willis continuously smoking cigarettes throughout -- I think it was "Lethal Weapon" -- doesn't have an effect on young people?
Mr. Pitofsky: Yes, I think it does have an effect on young people.
Sen. McCain: Do you think that something should be done about it?
Mr. Pitofsky: No, I don't think that something should be done about that.
Sen. McCain: No. But you think that something should be done about a billboard. But not a movie. I am trying to describe the dilemma we are facing as to where our role stops and individual liberties begin.
That is why I take some exception to your argument that somehow we can come up and define the difference between what appeals to young people and what doesn't appeal to young people.
I will bet you that Bruce Willis continuously smoking in a movie has a lot more effect on my kid than this billboard does or Joe Camel. Yet we are all very reluctant to say anything about what Hollywood does -- because then you might be worrying about First Amendment problems. I hope you and the other advocates will be willing to take on that issue, too.
Young people imitate everything that people in Hollywood do. They did it when I was a kid, and they do it now . . .
[From later in the hearing.]
I am intrigued by your zeal to attack one part of the issue and let another one stand.
[Mr. Pitofsky explained his concern was commercial speech for which marketers were paying. He noted that tobacco companies since 1989 have voluntarily abstained from paying movie studios for placements of cigarette brands in films.]
Mr. Pitofsky: It is a theoretical problem.
Sen. McCain: I find your morality somewhat theoretical. . . . Then we should have voluntary agreements across the board.