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Would Prohibit Imagery and Color in Some Ads

By Published on .

WASHINGTON (AdAge.com) -- The U.S. Senate is swiftly moving to write into law the same tobacco marketing curbs that the
Photo: AP
Sen. Ted Kennedy's committee seeks to impose the tough rules proposed by the FDA six years ago.
Food and Drug Administration sought to impose six years ago.

The Senate Health, Education, Labor and Pensions Committee headed by Sen. Ted Kennedy, D-Mass., is trying to make the rules effective immediately as part of legislation giving the FDA authority over tobacco. The U.S. Supreme Court ruled two years ago the FDA didn't have authority to impose the rules, which would have prevented the use of imagery and colors in some ads and point-of-sale materials.

A hearing on the legislation proposed by Sens. Kennedy, Richard Durbin, D-Ill., and Michael DeWine, R-Ohio, was planned for July 18 but the date was pushed up as the Senate starts debate over prescription drug bills instead. An aide to the committee said today Sen. Kennedy still intends to proceed quickly with the legislation, but the hearing may be delayed a week or two.

Will it be constitutional?
"We feel it will pass constitutional muster," said an aide to Sen. Kennedy.

Former FDA Commissioner David Kessler's original 1996 rules prompted lawsuits by ad and media groups and by tobacco makers. The ad groups argued that the curbs were unconstitutional and prevented ads for a legal product from reaching consumers, and that the FDA didn't have authority to impose them. Tobacco makers argued that the FDA didn't have authority over tobacco.

Specifically, the FDA's rules barred tobacco makers from running any ad containing imagery in

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magazines where more than 15% of the readership is under 18 or in any magazine with more than 2 million readers under 18. It also limited point-of-sales to black and white only and included a number of other restrictions on marketing, sponsorships, giveaways and promotions. The latest legislation adds requirements for larger warning labels and would require the FDA to review health risks when new products are marketed.

Last week, ad groups said that while the amount of tobacco advertising affected by the ruling has decreased as tobacco makers voluntarily pulled some of their ads and marketing, the First Amendment issues haven't changed.

Limiting speech
"The size of the business doesn't matter. It is the principle," said Jeff Perlman, senior vice president for the American Advertising Federation. "It doesn't matter if it is $3 a year in advertising if what you are trying to do is unconstitutionally limit speech."

Richard O'Brien, executive vice president of the American Association of Advertising Agencies, called the proposal "a direct assault on a legal product's ability" to advertise to the public.

Dan Jaffe, executive vice president of the Association of National Advertisers, said, "It's one thing to say the FDA should have jurisdiction over tobacco. It is another thing to pass unconstitutional laws."

Hindering competition
While tobacco companies six years ago opposed FDA oversight over tobacco, the position of some has since changed, and industry reaction to the bill is mixed. Philip Morris USA supports the legislation, while R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. claim it hinders competition.

"We do not believe that the bill represents reasonable legislation or regulation because it would provide an unfair competitive advantage," said an RJR spokesman, who said the company would support "reasonable" regulation that enables all companies to compete for adult smokers' business. He said the bill would make it "very difficult to communicate any brand message that would foster brand growth."

"There's a number of advertising and marketing restrictions on this bill that we feel would put us at a severe competitive disadvantage," a B&W spokesman said.

Industry leader Philip Morris supports the new warning labels, as well as FDA regulation of all other areas outlined in the bill, including advertising, brand descriptors, manufacturing practices and reduced-risk products.

"We think it would be good for the industry and good for Philip Morris USA to have clear rules that they could follow," said Mark Berlind, associate general counsel for the company's government affairs division.

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