The administration sees voluntary marketing restrictions as a vital part of any plan to cut teen smoking, because legislating ad curbs risks being overturned on First Amendment grounds. Thus the administration's decision to seek to "build" on the agreement negotiated earlier by state attorneys general.
FIRST AMENDMENT CHALLENGE
"The restrictions on advertising and marketing you can't get through a piece of legislation," said Mississippi Attorney General Michael Moore, who negotiated the agreement for the attorneys general. "You must get those through the settlements of these [liability] lawsuits, otherwise there will be First Amendment challenges."
But Washington Attorney General Christine Gregoire was more confident the government could win a court showdown.
"I believe if you look at commercial speech, if [the restriction] is dedicated to alleviating the problem-in this case teen-age smoking-we can pass constitutional muster," she said.
"It is more important that Congress sets the policy of this country and makes it clear what they are saying than if we just put it in consent decrees," she said. "What Congress needs to do is make its statement: 'To protect our children, we need to stop the advertising that is preying on our kids.' We think that public policy statement will take us a long way in meeting any constitutional challenge."
Bruce Reed, White House director of domestic policy, and Health & Human Services Secretary Donna Shalala said the ad issues will require negotiations with tobacco marketers. This time, however, it will be Congress, rather than the states and private liability lawyers, doing some of the negotiating.
The original settlement contained extensive ad and marketing restrictions. Print ads can't contain people or cartoon characters and imagery and color can only appear in magazines without large underage readership. Giveaways, outdoor signage, brand name event sponsorships and continuity programs are all banned.
President Clinton-while seeing the ad restrictions as the deal's best part-was convinced that those limits, an anti-smoking campaign and the penalties in the original deal weren't sufficient to reduce underage smoking to goals stated in the original pact, according to an aide.
The prospect that ad curbs would be legislated instead of voluntary has worried ad groups, which fear any tobacco law, if upheld by the courts, could prompt battles over similar severe government curbs on the marketing of alcohol and other products. The First Amendment issue disappears if tobacco companies voluntarily agree to limit their own ads.
TOBACCO INDUSTRY WARNING
The tobacco industry last week warned it was unwilling to substantially alter the financial terms of the deal and won't be willing to accept the ad curbs without an overall settlement.
"The tobacco industry agreed to the advertising restrictions as part of a complete settlement," said J. Philip Carlton, an attorney for tobacco companies. "That is why attempting to do it on a piecemeal basis is not the way to do it."
Anti-tobacco groups, meanwhile, are urging Congress to toughen the ad restrictions negotiated by the state attorneys general.
The American Lung Association, testifying before the Senate Commerce Committee last week, urged Congress to cut the number of magazines that would be allowed to carry tobacco image advertising. The existing agreement bars such ads in titles where either 15% of readers, or 2 million persons, are under 18. Tobacco ads in such magazines would be limited to b&w text. The lung association said the b&w ad rule should be extended to titles with 15%, or 1 million, readers