Justice Dept. looks to FCC before probing Web cig ads

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The ban on tobacco ads in electronic media may not apply to the World Wide Web, say officials at the U.S. Department of Justice.

A ban on Web tobacco ads would require that the medium be regulated by the Federal Communications Commission, said Gene Thirolf, the Justice Department's director of the Office of Consumer Litigation.

WAITING FOR FCC TO MOVE

The FCC handles some telephone-related issues. However, Mr. Thirolf said, "Until [the FCC] takes jurisdiction [of the Web], we don't feel we can be pursuing enforcement action."

According to the 1970 Cigarette Act, cigarettes can't be advertised "on any medium of electronic communication subject to [FCC] jurisdiction."

Some public interest groups question the Justice Department's interpretation. The Center for Media Education contends that because the FCC regulates phone lines, it regulates the Web.

"It is clear that the Justice Department has jurisdiction over the Internet," said Executive Director Jeff Chester, noting that his group argued this point in meetings last week with Clinton administration officials.

"The [law] doesn't mean you have to regulate content," said Henry Geller, a former FCC general counsel working with the Center for Media Education. But, he noted, three past FCC cases indicate that "If you regulate the underlying medium [lines], you regulate."

So far, few tobacco marketers have used the Web. Both Philip Morris USA and R.J. Reynolds Tobacco Co. said last week they have no current plans for Web sites. And in a recent report on alcohol and tobacco sites on the Web, the Center for Media Education admitted it "found very few overt advertising sites for cigarettes."

B&W ON WEB

The only major tobacco company to use the Web as a marketing tool in the U.S. so far has been Brown & Williamson Tobacco Corp. for its Lucky Strike brand.

Its Circuit Breaker site offers contests, T-shirt giveaways and information about San Francisco area activities. The site asked that visitors be 21 or older but originally never identified itself as coming from a tobacco brand. It contained no advertising.

After criticism and indications the Federal Trade Commission was looking into the lack of identification, Brown & Williamson last week altered the site to include several mentions of the sponsor.

Extending the Cigarette Act to the Web could be a legally risky move for tobacco critics.

Although Congress passed the act after tobacco marketers voluntarily pulled their broadcast ads in 1970, the ban has never been challenged by tobacco companies.

Since then, the U.S. Supreme Court has enlarged protection for commercial speech.

Copyright March 1997, Crain Communications Inc.

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