The U.S. Supreme Court's decision barring the U.S. Food & Drug Administration from regulating tobacco finally killed off one of the most broad-reaching government attempts to regulate advertising. But it opens the door for the court to hear further cases on advertising.
Attorneys for ad groups, jubilant at the end of a five-year battle against tobacco ad curbs, still said the high court likely would have to consider many of the First Amendment issues raised in the case. The decision could also prompt a major fight in Congress--most likely next year--on whether to write tobacco ad curbs into law and whether the FDA or Federal Trade Commission, should oversee tobacco advertising.
"In our heart of hearts, we would have liked to have had a victory on the First Amendment issues," said Jeff Perlman, senior VP of the American Advertising Federation. "It is absolutely a victory, but it would have been nice to have a double-barreled victory."
Already in the wake of the 5-4 Supreme Court decision, there were suggestions from several legislators last week that Congress act this year on tobacco. But Congress' short session this year appeared to make a tobacco vote unlikely.
Hal Shoup, exec VP of the American Association of Advertising Agencies, worried that the Supreme Court's decision may prompt Congress to try to implement the ad curbs or turn ad issues traditionally handled by the FTC over to the FDA.
"If Congress were to choose to include the provisions that the FDA had included in its regulations, then there would be big problems [immediately]," Mr. Shoup said. "If Congress were to move jurisdiction for regulation of tobacco advertising to the FDA, that would mean big problems later. Historically the FDA has had far less regard for constitutional protection of free speech than the FTC."
The FDA, which for years said it had no authority to regulate tobacco, reversed course in 1995 under former commissioner Dr. David Kessler and proposed the most extensive curbs on product marketing in U.S. history.
Under those regulations, marketers would have been barred from using imagery or color in magazine ads with significant readership by those under 18. They also would have been barred from sponsoring sporting or musical events under tobacco brand name banners and offering continuity programs. Point-of-purchase materials also would have been limited to b&w text. In addition, tobacco marketers would have had to remove all outdoor signs near schools and playgrounds and even signs inside stores that were visible from the outside.
The ad regulations were placed on hold, and ad groups in 1997 convinced a judge in Greensboro, N.C., that the FDA had exceeded its authority in trying to regulate tobacco marketing. The proposals then sat in limbo while courts decided whether the FDA had the right to regulate tobacco.
Since the original FDA rules were proposed, the tobacco industry voluntarily agreed to some marketing restrictions to settle state tobacco lawsuits.
It was the longer-term effects of the Supreme Court decision that concerned ad groups.
"We thought the advertising issue was an important victory, but it is clearly a respite, not the end of the story," said Association of National Advertisers Exec VP Dan Jaffe. "How tobacco is regulated is not of concern to us, but we do care how the ad issues are carried forward and whether what is done will create precedents. The FTC is the right place to decide advertising issues."
Moreover, First Amendment attorneys said the FDA decision sets the stage for several city or state cases restricting tobacco signs to become the next advertising law consideration of the Supreme Court. In Boston, Chicago, New York and Tacoma, Wash., courts reviewing local tobacco ad curbs have reached differing decisions on whether federal law on tobacco ad warnings pre-empts cities from regulating tobacco ads.
The high court's decision, meanwhile, forced the FDA to immediately abandon a $11 million ad campaign supporting one part of the rules requiring retailers to check picture IDs of those under 26 before selling them tobacco. Arnold Communications, Boston, had handled.
Ira Teinowitz, March 27, 2000, AdAge
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