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The Food & Drug Administration's curbs on tobacco marketing, overruled by a judge as an overreaching of legal authority, could be one branch of Congress away from being the law of the land by week's end.

With the U.S. Senate due to start debating its tobacco bill late today, the proposed FDA restrictions appear all but certain to get endorsement in the legislation that emerges.


FDA rules would bar giveaways of merchandise with tobacco emblems; end tobacco ads in magazines with either large children's readership or more than 15% readership by those under 18; limit sponsorships; and bar both color in all outdoor signs and any signs at all within 1,000 feet of a school or playground.

The biggest fights about advertising slated for the Senate floor now appear to concern whether to try to force tobacco marketers to observe additional ad restrictions, ranging from a ban on people and caricatures in ads to limits on overseas marketing-the latter likely to be struck from the bill.


Tobacco marketers earlier offered to accept some of the same curbs in trade for healthcare liability limits, but the Senate will consider imposing the restrictions without the industry's consent.

Passage of a tobacco bill remained far from certain late last week, with majority Republicans split into four or five camps and at Tobacco ad rules

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least one Republican senator threatening a filibuster.

Penalties for failing to reduce underage consumption also will be a big battle as the discussion focuses on how to spend money raised through increased taxes on tobacco products.

Negotiations were going into the weekend, and there were reports Senate Majority Leader Trent Lott (R., Miss.) was worried Republicans could lose control of the Senate if tobacco legislation failed, and was offering to trade use of some of the tax money in return for GOP votes.


On advertising issues, the major questions remained whether to impose restrictions beyond the proposed FDA rules and how much money to spend on anti-tobacco advertising.

Some legislators last week suggested increasing the $500 million-a-year program now in the Senate Commerce Committee bill from Sen. John McCain (R., Ariz.) and others suggested the spending should include anti-drug ads.

The FDA ad restrictions are being challenged by ad groups and tobacco companies on grounds that include constitutionality.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit is to rehear on June 9 in Charleston, W.Va., a challenge to the original decision handed down by Greensboro, N.C., U.S. District Judge William Osteen, who ruled the FDA had no authority to issue the ad curbs but never ruled on constitutionality.


The McCain bill requires tobacco marketers that want a limit on their annual liability payments to accept more drastic ad restrictions than those the FDA announced; the tobacco marketers have said the liability limits aren't worth the tradeoff and that, without it, the McCain bill merely gives the FDA the authority Judge Osteen said the agency didn't have.

Two prominent Republican senators, Senate Judiciary Committee Chairman Orrin Hatch (R., Utah) and Assistant Majority Leader Don Nickles (R., Okla.), who has been coordinating Senate Republican tobacco strategy, continue to be concerned about the constitutional questions regarding the FDA rules.

"The advertising restrictions are unconstitutional," Sen. Hatch told Advertising Age.

Sen. Hatch said the only way to get the ad restrictions is to get tobacco companies back in settlement talks.

Sen. Nickles said he wanted to kill the tobacco bill and to substitute an anti-smoking and anti-drug bill, and said he had "real problems" with the FDA's ad regulations-which "go too far."

Other senators believe, however, that the legislation doesn't go far enough and promised to introduce tougher amendments.

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