The advertising, tobacco and convenience-store industries jointly filed a legal brief focusing on advertising arguments and charging the rules are overly broad. Their respective suits in U.S. District Court challenge both the FDA's authority to regulate tobacco and the ad rules promulgated.
The February hearing is expected to center on the tobacco marketers' attempt to get a summary judgment that the FDA has no right to regulate tobacco.
The Justice Department contends that "numerous studies and surveys . . . showed `children are exposed to substantial and unavoidable advertising, that exposure to tobacco advertising leads to favorable beliefs about tobacco use, that advertising plays a role in leading young people to overestimate the prevalence of tobacco use, and that these factors are related to young people's tobacco initiation and use.' "
In their joint brief, opponents to regulation accuse the FDA of "fundamental errors" in claiming the restrictions' effect on adults' rights would be "incidental" to their aim at children.
"In seeking to justify restraints on what is seen by 85% of the advertising audience, [the FDA] ignores the requirement that restrictions on speech must be proportionate to the interests asserted," says the challengers' brief.
The rules, most of which take effect in August, bar tobacco companies from advertising on many outdoor boards; from running anything but b&w text ads in magazines either with more than 15% readership or more than 2 million readers under 18; and, eventually, from sponsoring events under tobacco-product brand names. They also prevent giveaways of merchandise bearing tobacco brands.
GOV'T REVERSES COURSE
In defending the FDA and the agency's authority to regulate cigarettes as "drug delivery devices," the Justice Department is reversing course. Justice argued a decade ago in another court case that the FDA had no rights to regulate tobacco, a point made repeatedly in the industry lawsuits. The government brief contends the regulation stems from new research and new information.
The brief also says a U.S. Supreme Court decision in May that overturned a Rhode Island law barring liquor advertising-and seemingly providing broad commercial free speech guarantees for advertising-doesn't apply.
The two sides' differences are highlighted by the following examples from each side's arguments:
Government: A ban on imagery and color in advertising is legal because "removing images and color from these advertisements would have no impact on the information they convey."
Industry groups: "FDA's defense would allow government to ban colors and images in almost all advertising, even where the overwhelming majority of those who view such advertising are allowed to use the product. Contrary to FDA's approach, a concern that a small minority of the audience might use a product unlawfully cannot control what the vast majority can see."
Government: Using 15% youth readership to decide which magazines can have imagery in tobacco ads is legal "because children between [ages] 5 and 17 constitute approximately 15% of the total population, a publication whose youth readership is proportionately higher than 15% of the total . . . can fairly be characterized as having greater appeal to younger readers."
Industry groups: "Under FDA's tests, a publication is `youth-oriented' even if 98% of those reading it are adults. The 2 million threshold is not only arbitrary, it manifests FDA's insensitivity to the First Amendment rights of plaintiffs to communication and . . . adults to receive truthful messages about a product they may lawfully consume."
Government: Barring outdoor ads within 1,000 feet of a school or park is legal because "children spend a great deal of time in schools and playgrounds, and outdoor advertising that is visible from those locations, particularly billboards, exposes children to tobacco advertising on a continuous and prolonged basis."
Industry groups: "FDA's rules would effectively ban all outdoor advertising in many urban centers."
The industry groups also contended in their brief that the FDA's rules were far in excess of what would be necessary to accomplish the agency's goal of reducing smoking among those under 18.
"There are other ways . . . in which FDA can advance its asserted interests without violating the constitutional rights of adults," the brief said, citing educational programs and improved enforcement of underage sales rules.