Even as conflicting reports surfaced last week of settlement proposals, ad groups were contending the FDA ban on the use of any color, including gray, in outdoor boards, point-of-purchase material and some magazine ads is too broad and thus unconstitutional.
"Is there something in dull gray or taupe that makes kids want to smoke?" asked Dan Jaffe, exec VP, Association of National Advertising. "It's an overbroad restriction."
In a federal court suit filed in Greensboro, N.C., ANA and other ad groups have challenged the FDA's right to regulate tobacco ads, contending the Federal Trade Commission holds that authority.
However, they also contended last week that FDA regulation has to be much more narrowly defined.
"While some colors coupled with some advertisements may appeal to kids, you can't have an across-the-board ban," said Mr. Jaffe. "The [Supreme] Court has said that you can't apply a prophylactic rule. Restrictions have to be narrowly tailored."
Mr. Jaffe and Wally Snyder, president of the American Advertising Federation, pointed to the high court's 1985 action in an Ohio case overturning restrictions barring lawyers from using illustrations or pictures in advertising.
In that case, the court said states can't ban all forms of imagery to avoid having to distinguish between truthful and non-truthful.
The FDA has contended that ruling applies to legal advertising and that tobacco advertising to children is illegal.
ONE OF FOUR CHALLENGES
The ad group challenge is one of four cases already filed. The cigarette industry has one of the other suits; the other two are from the smokeless tobacco industry and the National Association of Convenience Stores.
The judges in all four cases last week scheduled hearings in mid-February, giving plaintiffs time to refile pleadings to reflect the final FDA rules.
North Carolina Gov. Jim Hunt, a Democrat, said the state may go to court as well to prevent the rules from taking effect.
While the cases are still expected to go to trial, there were reports last week that some state attorneys general and lawyers suing the tobacco companies seeking billions of dollars to reimburse for providing healthcare to for those dying from tobacco illnesses were in settlement talks and that proposed settlements would include voluntary restrictions on advertising.
R.J. Reynolds Holdings Corp. said it was in no talks, and Philip Morris Cos. said it had seen no proposals.