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The tobacco bill that finally emerged from the Senate Commerce Committee last week threatens to increase drastically the effect of ad and marketing restrictions, even as it offers a possibility no such restrictions will ever occur.

The legislation provides two options. If the tobacco companies want limits on future liability payments, they have to accept previously proposed Food & Drug Administration curbs and those offered by state attorneys general plus additional ones the committee is proposing. If that's unacceptable to the tobacco companies, the bill simply authorizes the FDA to regulate tobacco advertising.

That ad authority had been struck down by the courts.

Ad groups and tobacco marketers have also challenged the constitutionality of the FDA tobacco ad curbs.


In the new curbs proposed by the Commerce Committee, tobacco marketers not only will have to accept previously proposed restrictions on giveaways, outdoor signage, brand sponsorships, ads in magazines with youth readership, and on the use of humans and cartoon characters in ads, but they also will have to agree to stop using any depictions of animals in ads and stop running color ads on back covers of magazines that do not have heavy youth readership.

Those rules also now would apply to cigarette packages, meaning R.J. Reynolds Tobacco Co.'s Camel brand could not carry its traditional dromedary figure, while Philip Morris USA's Marlboro brand couldn't use a horse in its "Marlboro Country" advertising.


Ad groups had feared the bill would create a precedent-setting problem by writing curbs into law, but the final legislation chose to avoid a direct First Amendment challenge by simply giving FDA regulatory authority.

An attempt by Sen. Olympia Snowe (R., Maine) to write all the ad restrictions into law produced a negative 5-to-14 vote and strong warnings from lawmakers who doubt the constitutionality of mandating ad curbs.

"We are engaging in a rush to see who can be hardest on the tobacco companies," said John B. Breaux (D., La.). "I am very concerned . . . we are on very shaky ground. Cigarette advertising, whether we like it or not, is not afforded any less First Amendment rights than any other legal product."

Sen. Slade Gorton (R., Wash.) called any curbs on cigarette advertising "patently unconstitutional."


Ad groups said they were pleased the committee chose not to write the ad curbs into law, but not as happy the FDA was given authority to examine advertising -- now the sole province of the Federal Trade Commission.

They also expressed concerns about Senate committee "findings" about advertising's effects on smoking.

In the bill is language that reads: "Tobacco advertising and marketing contribute significantly to the use of nicotine-containing tobacco products by adolescents" and "Tobacco product advertising often misleadingly portrays the use of tobacco as socially acceptable and healthful to minors."

Tobacco marketers last week indicated they find the bill totally unacceptable and said they would be unwilling to trade the stronger ad curbs for the weak protection on liability issues.

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