FDA tobacco ruling reopened

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Agency addresses curbs on media, concerns on `arbitrary decisions'

The Food & Drug Administration toughened and further explained its stance on sections of proposed tobacco advertising rules last week, only to get an unexpected reaction from some ad groups and lawyers.

They were pleased.

"I think this is a signal that they are deeply worried about their rule. They are trying to buttress it by reopening the rulemaking," said Dan Jaffe, exec VP of the Association of National Advertisers. "They still haven't dealt with a lot of arbitrary decisions."

The proposed rules would sharply limit magazine and out-of-home advertising for cigarettes, and the FDA is hoping the attention on affidavits it released about alleged nicotine manipulation by the companies will help assure its right to regulate the products as "drug-delivery systems."


Tobacco companies are challenging that right in a court case, contending the Federal Trade Commission, not the FDA, regulates tobacco.

In the rules unveiled last August, the FDA proposed banning outdoor ads within 1,000 feet of a school or playground; restricting tobacco companies to black & white, text-only advertising in magazines with more than 15% readership by those under 18; eliminating giveaways of merchandise with tobacco symbols; and limiting tobacco symbols in many sports sponsorships to b&w text only.

Other rules would require tobacco companies to fund a $150 million anti-smoking program and limit direct mail to text only.

The FDA last week offered additional explanation of the sections affecting media as it reopened the period for submitting comments for a month.

Its memorandum said the outdoor industry's voluntary ban on signs within 500 feet of a school or playground isn't enough. The agency said 1,000 feet limits or three blocks "will protect children when they travel to or from the playground or school."

On magazines, the agency cited readership information submitted by the Tobacco Institute and based on a study by MediaMark Research showed the wisdom of selecting 15% readership by those under 18 as the dividing point for deciding which magazines could and which could not run tobacco ads using imagery. The FDA proposals also bar imagery in magazines with less than 15% readership but more than 2 million underage readers.

The Tobacco Institute had said 51 of the 62 magazines for which readership data were studied would be limited to text-only b&w ads. FDA, however, said that the same research showed its aim to be true, with both sections of the rule hitting the kind of magazines the agency intended.

"The agency drew the 15% threshold...based on the public perception that certain magazines are likely to be of interest to young people under the age of 18," said the agency in an apparent reference to Sports Illustrated.

SI President Don Elliman objected to the FDA's use of readership surveying, calling it "an ill-defined statistic."

"If you're dealing with surveys and trying to say what can and cannot be legally advertised, you better be very sure of your facts," he said, suggesting subscriptions are more precisely measurable and noting SI has less than 15% of subscribers under 18.

The ANA's Mr. Jaffe said he still doesn't believe the FDA adequately explained a reason for the particular rules and that it hasn't dealt at all with controversial sections.


Douglas Wood, an advertising lawyer with Hall Dickler Kent Friedman & Wood, said the FDA is trying to respond to critics citing the First Amendment who charge the agency's explanation for seeking broad curbs on commercial speech are at best vague.

Also, he said, the proof that the steps would curb underage smoking is even less clear.

"You can [regulate] only if you can prove the government has a role and the regulations have a specific connection to solving a problem. Where they stumble is whether the specific solution [they offer] really addresses the problem," he said.

Lenn Lammi, chief counsel for the Washington Legal Foundation, which has opposed the FDA's restrictions, said the agency might feel the two sections may be in the most trouble, since the Supreme Court has ruled provisions curbing commercial speech have to be narrowly tailored.

A Tobacco Institute release last week claimed under the proposed rules, the ad industry would lose between 2,734 and 8,183 jobs and revenues of between $722.3 million and $2.167 billion.

Copyright March 1996 Crain Communications Inc.

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