If passed, the bill, to be proposed next month, would mean the end of colors or images in many tobacco ads and signs, regulations on where tobacco makers could advertise, and limits on sponsorships and the number of signs in stores. It would allow the FDA to require up to 50% of packages be devoted to a warning label to comply with a recently signed World Health Organization tobacco treaty.
The legislation also would treat the words "light" or "mild" as health claims that could only be used with proof of scientific support.
Of most concern to ad groups are the sharp restrictions on advertising that they fear could later extend to other product categories. "If there is no stop to this becoming precedent, it will be the law of the land and applied in other areas," said Dan Jaffe, exec VP, Association of National Advertisers.
The bill, sponsored by Sens. Mike DeWine, R-Ohio, and Judd Gregg, R-N.H., would give FDA authority over tobacco, now overseen by the Federal Trade Commission. It would prevent FDA from banning tobacco, unlike a similar bill from Sen. Edward Kennedy, D-Mass.
In recent years, tobacco companies have taken voluntary steps to curb their advertising, pulling ads from magazines with high youth readership and from most outdoor billboards. Still, the new legislation would have significant repercussions for tobacco marketing. Tobacco makers have argued that "light" is a reference to taste, not health, and that they probably could not demonstrate a health benefit. That would effectively force light brands to be pulled or rebranded.
"We are going to have to look at the bill," said Brendan McCormick, director-media relations at category titan Philip Morris USA, though he said Philip Morris supports FDA regulation.
Steve Kottak, director-corporate communications, Brown & Williamson Tobacco Co., said the legislation would put his company at "a huge competitive disadvantage."
"We would support if it was sensible and created a level playing field, but we believe this would offer a huge competitive advantage [to Philip Morris]. It would limit the ability of smaller brands to attract attention and market our product."
Carole Crosslin, a spokeswoman at R.J. Reynolds Tobacco Co., said the company supports giving the FDA additional regulatory authority over tobacco manufacturing and design. She said RJR supports "reasonable regulation that would allow us to compete for adult smokers," and that could include setting standardized levels for low tar, light and mild labels.
setting the stage
FDA tobacco regulations were first promulgated in 1996 by then FDA Commissioner David Kessler and immediately drew fire. Ad groups challenged their constitutionality in a lawsuit. The rules were eventually overturned by the Supreme Court, which declared that the FDA did not have legal authority to regulate tobacco. Under the upcoming proposed legislation, it would.
Ad groups warned the curbs could set the stage for attempts to put restrictions on other products from alcohol to high-fat foods.
"What the Supreme Court has done is say that there are not special categories of products and the First Amendment protects products equally," said ANA's Mr. Jaffe. "The [original] FDA regulation was the most restrictive advertising regulation ever proposed in this country."
"I can't believe the proposed advertising regulations would survive a Supreme Court challenge," said Dick O'Brien, exec VP of the American Association of Advertising Agencies. "This legislation is on very shaky constitutional grounds."