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With Food & Drug Administration rules looming that will bar licensing of non-tobacco brands for tobacco products, Lorillard Co. has quietly introduced Maverick cigarettes as a replacement for Harley-Davidson branded smokes.

The new brand's package carries a symbol similar to the Harley bar and shield and says: "from the makers of Harley-Davidson cigarettes."

Lorillard did not return phone calls. It has done little advertising for H-D cigarettes, but two years ago won a court fight with Harley-Davidson over the latter's attempt to cancel the license.

Although the FDA*rules will not affect already-existing products, potential publicity could have caused the switch.


"There is no question that [the FDA rules are] having a chilling effect," said Dick Blatt, president of the Point-of-Purchase Advertising Institute, who noted that $700 million in POP spending by tobacco marketers will soon be affected.

Last week, U.S. District Judge William L. Osteen warned he would need from five to 10 weeks to rule on a motion to overturn the proposed regulations. That decision increased industry concerns there could be immediate economic impact from the rules even if all or some are eventually set aside before the Aug. 28 effective date.

The tobacco industry generally orders its major point-of-purchase advertising materials six months ahead, leaving little time before fall plans need to be finalized.

Magazines, too, have problems with the judge's timetable, though the delay isn't sufficient to directly affect space buys. Instead, the delay imposes hard questions about major spending for readership research studies.

Relatively few titles do research about under-18 readership, but that appears to be necessary under the FDA rules in order to accept tobacco advertising using images, and such studies can take as long as six months to conduct.


In the hearing, Judge Osteen expressed skepticism to suggestions that tobacco ads don't affect tobacco usage.

"Isn't that the purpose of advertising, to get people to use things, to try to generate" use? the judge asked Richard Troy, an attorney representing tobacco companies.

Mr. Troy, who had earlier called the FDA regulations "substantially more than needed," did not directly answer the question, stressing the rules went far beyond those permissible under the First Amendment.

Mr. Troy and John Oberdorfer, an attorney for the ad groups involved in the lawsuit, conceded some regulation of tobacco ads might be allowable. Mr. Troy noted, however, that the FDA had alternatives besides ad curbs to restrict youth smoking and that U.S. Supreme Court decisions required the government to try them first.

Mr. Oberdorfer said broadcast tobacco ads were already banned and warned the FDA's rules "would forever narrow the limits of advertising to reach an adult audience."

He disputed the FDA's claim that its restrictions on color and imagery in ads were lawful because "information" could still get through. "Color and image play an essential role in drawing attention and creating a public identity," he said. "The FDA ban will cripple the advertising of tobacco."

The judge also questioned the Justice Department's stance based on legalities involved.


Justice lawyers said that while better enforcement of curbs on underage sales would help reduce youth smoking, the ad restrictions are needed.

"If we don't attempt to do something about demand [with ad restrictions], we are undermining the various programs we are trying to bring [youth smoking] down," said Douglas Letter, appellate litigation counsel for the Justice Department.

The hearing had its ironies. Tobacco companies contended that if the FDA had any tobacco authority, its only choice was to ban the product-in effect arguing for a ban on their own business. Justice countered by saying that FDA, in the interest of 50 million people addicted, would choose to keep tobacco on the market and instead regulate the product.

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