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, is set for July 18 with a final committee mark up and vote expected July 31.
"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, prevented ads for a legal product from reaching consumers and said 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 magazines where more than 15% of the readership is under 18 or in any magazine with more than 2 million under 18 readers. It also limited POS 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.
"The size of the business doesn't matter. It is the principle," said Jeff Perlman, senior VP 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, exec VP 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, exec VP 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."
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," said a B&W spokesman.
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.