Industry plans suit over N.Y. ad limits

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Ad groups are planning to sue the city of New York over its proposed ban on outdoor tobacco advertising and marketing, the industry's first direct challenge of a wave of such actions around the country.

The suit, in which ad groups will join with New York retailing organizations, could be filed as soon as this week, said representatives of several organizations, though talks taking place with other possible plaintiffs could slightly delay the filing.


"This is New York City. It's home territory," said John Kamp, senior VP of the American Association of Advertising Agencies, in explaining why the industry has waited for local court cases to reach the appellate level before entering the fray.

New York City's restrictions are the most far-reaching any government has attempted to impose on tobacco. Outdoor ads would be barred not only within 1,000 feet of a school or playground, but within 1,000 feet of any daycare facility or retail site with five or more videogames.

The law, which within those same areas also outlaws indoor signs if they can be seen from the door, is expected to be signed this week by Mayor Rudolph Giuliani. The ad groups hope to go to court perhaps the same day with the suit, now being drafted by constitutional lawyer Floyd Adams with its final approval still pending.


Industry leaders have said the ordinance effectively bans most tobacco advertising and marketing in New York except for taxi signage, and suggest it's unconstitutional. It also bans merchandise giveaways.

The law becomes effective 60 days after its signing; outdoor and signage would have to be down 30 days after that.

As strong as the New York ban is, increasing the pressure to act is the snowballing number of cities and states approving ad restrictions.

In the most extensive state action, a law took effect Jan. 1 in California that bans tobacco boards within 1,000 feet of a school or a playground and also does not "grandfather in" existing signs leases.

Tobacco companies voluntarily pulled outdoor ads within 1,000 feet of schools in Florida and Mississippi; Tacoma, Wash., and Chicago have put in restrictions that will take effect when current media contracts expire.

A spokesman for R.J. Reynolds Tobacco Co. said last week that it is "considering its options" in California.

A Philip Morris USA spokesman said the company does not have any boards in conflict with the law.


Within California, Oakland early last month approved an ordinance that bans all outdoor tobacco and alcoholic beverage ad signage except on taxis or in certain industrial areas away from schools.

The San Francisco Board of Supervisors recently approved an ordinance saying specifically that state law doesn't go far enough and barring any signs except those close to and facing a highway. Signs outside stores would be limited to announcing that tobacco products are sold, without brand names.

That ordinance still has to be approved by Mayor Willie Brown Jr. and gives marketers six months to remove signs.

Compton, Calif., also put a ban on alcoholic beverage and tobacco ads, except in industrial areas.

These laws follow Baltimore's success in getting its ordinance limiting tobacco and alcoholic beverage ads through the courts despite First Amendment challenges.

Ad groups have contended the cities and states are badly misreading the U.S. Supreme Court, which they said has made clear repeatedly that banning advertising aimed at adults to avoid harm to children is unconstitutional.

John Fithian, an attorney for the Freedom to Advertise Coalition, made up of advertising and media groups, said the array of local challenges now gives the high court clear reason to act after having declined to review the Baltimore ordinance.

Assemblywoman Carole Migden, who sponsored California's new law, said tobacco companies and ad groups should be careful about picking a fight over outdoor tobacco ad restrictions.

"Tobacco advertising near schools and playgrounds is not a place where the industry wants to stand and fight," she said. "That's certainly not a winning approach."

Copyright January 1998, Crain Communications Inc.

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