Limiting Tobacco Ads

Source from:  Column by The Post's Michael Collins Cincinnati (OH) Post 08/16/2004

Farmers aren't the only ones who will be paying close attention when the debate over a tobacco buyout starts up again in Congress. National media, marketing and advertising groups are nervously watching to see what happens to a proposal that gives the Food and Drug Administration the authority to regulate tobacco advertising. The restriction was part of a $12 billion tobacco buyout package approved by the Senate in June. Ad agencies and marketers are working to kill the advertising restriction and have hinted at a possible court challenge if it should become law. The purpose of the advertising limits, supporters say, is to keep tobacco companies from marketing their deadly products to children. But advertising groups counter that the proposal is so broad that it would amount to a "de facto ban" on all tobacco advertising, including those ads targeted at adults. "It is so overly restrictive and so overbroad that we believe it would be unconstitutional and make tobacco advertising virtually impossible on a national basis to adults," said Dan Jaffe, executive vice president/government relations for the Association of National Advertisers, a trade association representing some 340 companies, including a few cigarette makers. The groups have no problem with the government offering a buyout to tobacco farmers, and they have no real objection to Congress giving the FDA regulatory authority over tobacco products, Jaffe said. "We're not trying to stop the bill," he said. "We are totally focused just on these advertising provisions." For good reason. The major cigarette companies now spend more than $11 billion a year to promote their products. Tobacco advertising increased by more than 66 percent from 1998 to 2001, the most recent year for which complete data is available. A separate tobacco buyout bill passed by the House does not give the FDA regulatory authority over tobacco. A conference committee will have to work out differences in the House and Senate versions when Congress returns after Labor Day. The advertising groups plan to lobby the conferees to drop the advertising restrictions. A big concern is that the Senate version -- authored by Ohio Sen. Mike DeWine and Massachusetts Sen. Ted Kennedy -- would require the FDA to reissue rules that it first proposed in 1996. (The Supreme Court ruled a couple of years later that the FDA doesn't have the authority to regulate cigarettes and that only Congress can give the agency such power, setting the stage for the current debate.) One rule that the advertisers strongly dislike would require that all tobacco advertising in publications for young people be written in black-and-white text, instead of the colorful displays often used to catch the eye. They also object to other provisions that prohibit tobacco sponsorship of sporting or entertainment events; allow states and local governments to impose more specific bans or restrictions on the time, place and manner of tobacco advertising; and impose new disclosure requirements that could lead to including tar and nicotine yields in all labels and advertising. Local rules could produce "a crazy quilt of inconsistent advertising restrictions" making it impossible to run a national advertising campaign, while the new disclosure requirements raise First Amendment concerns about "compelled speech" and the unconstitutional "taking" of a company's commercial property, a trio of advertising groups wrote in a letter to members of Congress last spring. The Newspaper Association of America also has expressed concerns about the government trying to regulate advertising content. "That could open the door so that other products -- such as fast food, fast cars, pharmaceuticals, alcohol -- could face the same kind of content restrictions," said Paul Boyle, senior vice president/public policy. "There is a slippery slope concern that is real." Nonsense, say anti-smoking groups. "Every time either the Congress or anyone talks about even modest restrictions on tobacco marketing, the advertising industry shouts that the sky is falling," said Matthew Myers, president of the Campaign for Tobacco-Free Kids. "These regulations are a carefully crafted set of rules designed to do what the advertising industry should have done on its own -- and that is eliminate the marketing tools that have made tobacco products so appealing to our children." Enditem