The good news is that a North Carolina court has ruled the Food & Drug Administration doesn't have the jurisdiction to impose advertising limitations on cigarettes. The bad news is the cigarette industry is conducting talks to accept severe ad restrictions-that go way beyond what the FDA proposed-in exchange for immunity against smoker-related lawsuits.
And in the latest ruling (or non-ruling), the Supreme Court declined to review lower-court decisions upholding a Baltimore law that bans cigarette and liquor ads on outdoor boards in residential areas.
As one ad insider told me: "The ad industry is trapped. They've run out of 'wiggle room.' "
The North Carolina court decision on the FDA "created a vacuum for cities and counties to legislate (ad restrictions), and now they will," a lawyer for the city of Baltimore told USA Today.
The Baltimore ordinance now becomes "a road map for acceptable legislation," as USA Today says.
The legal skirmishes don't mean much, however, if the cigarette companies, as part of an immunity deal, voluntarily agree to curtail their advertising drastically. But the ad industry vows to fight on. Any attempt by other cities or states to pass ad laws similar to that of Baltimore will be contested by the ad industry and would be a "very expensive mistake," the Association of National Advertisers' Dan Jaffe told the Washington Post.
It could be an expensive mistake for advertisers, too. Remember that the industry won the FDA case on jurisdictional, not First Amendment, grounds (the court said the Federal Trade Commission has the authority to regulate cigarette ads). And the cigarette industry has indicated it plans to appeal the FDA setback. Will the ad industry join in an appeal it's already won?
The Baltimore case, however, is a defeat of First Amendment rights, at least when it comes to tobacco and alcohol ads that could be seen by children. The ad industry has bet the ranch on defending the cigarette industry's right to advertise a legal product, fearing that if they don't fight to the death for even an unpopular product's First Amendment rights to commercial free speech, other product categories would be in jeopardy-the old "slippery slope" argument.
But what if the courts themselves decide that potential harm to children supersedes the First Amendment, and the ad industry starts losing ad ban cases all around the country?
By then the cigarette industry will have cut a deal and pulled the plug on its own advertising. It's very evident (to everybody but the ad trade associations) that the cigarette marketers don't give a hoot about protecting their own First Amendment rights when there are hundreds of billions of dollars in liability claims at stake.
But by pressing the issue, the ad groups could be putting other product groups at risk. When are the adpeople going to realize that when it comes to the protection of children, advertisers' free-speech rights take a back seat?
The ad industry was hoping that winning the ad portion of the FDA case, as it did, would strengthen its hand and allow it to press for self-regulation of cigarette advertising. Events have conspired to preclude that option.
And the Center for Tobacco-Free kids is once again gearing up to embarrass the ad industry. When forced to defend itself, the ad industry will once again talk First Amendment rights, and the anti-tobacco group will talk ethics and social