The ad curbs that appeared dead after the U.S. Supreme Court ruled the Food & Drug Administration had no authority over tobacco may soon be resurrected.
U.S. Rep. Greg Ganske (D., Iowa) is claiming growing support for a measure that would give the FDA the right to regulate tobacco--immediately imposing all the FDA ad curbs--while also adding new restrictions on tobacco marketing.
Rep. Ganske, thwarted from attaching his bill as an amendment to a piece of legislation April 13, promised to move forward with the measure when Congress returns.
The FDA ad curbs include a ban on imagery or color in publications with 15% readership by kids, or with large underage readerships; a bar on continuity programs and mailings; and limits on signage on race cars and in stores that go well beyond the curbs on billboards that tobacco marketers accepted to settle state lawsuits.
Ad industry officials, who four years ago joined tobacco marketers in court to challenge the FDA rules, have described them as the most extensive ever sought by the government to limit advertising, precedent-setting and a violation of First Amendment rights to advertise a legal product. The Supreme Court ruled only that the FDA had no authority to regulate tobacco and never made any decision on the constitutionality of the FDA ad rules.
What Rep. Ganske wants to add to the FDA guildelines is an increase in the size of warning labels and in their visibility in ads. The Ganske bill would unilaterally impose the requirement that tobacco marketers use 25% of their front label and 20% of their print ads for warnings that tobacco companies voluntarily agreed to as part of an overall agreement with state attorneys general.
Despite calls for action on tobacco after the Supreme Court decision, congressional attention to the issue had appeared unlikely this year, and it still may be--especially in the Senate. Aside from Rep. Ganske, legislation to put the FDA curbs into law have been introduced by Rep. Henry Waxman (D., Calif.) and in the Senate by Tom Harkin (D., Iowa), Lincoln Chafee (R., R.I.) and Bob Graham (D., Fla.).
Rep. Ganske, however, surprised ad groups by at least claiming the support of two House leaders, John Dingell (D., Mich.), minority leader of the House Commerce Committee, and House Judiciary Committee Chairman Henry Hyde (R., Ill.). Rep. Ganske has claimed co-sponsorship of his legislation by 25 Republicans and 19 Democrats.
"We believed that once the court ruled and rejected the FDA initiative, there would be a congressional response and it is happening," said Penny Farthing, counsel to the Freedom to Advertise Coalition, formed by ad and media groups in part to fight the ad restrictions.
Dan Jaffe, exec VP of the Association of National Advertisers, said he believes that some congressmen agreed to sponsor the bill--thinking it only gave the FDA the authority to regulate tobacco.
"When we talked to people on the Hill, they didn't understand what they were agreeing to," he said.
Jeff Perlman, senior VP for the American Advertising Federation, said that still leaves ad groups worrying. They are sending some congressmen opinions from prominent First Amendment attorneys questioning the constitutionality of the FDA rules.
Rep. Ganske, however, contends that the restrictions are constitutional. "I think that the parallels between other action the FDA has taken on packaging and promotion of drugs apply directly to nicotine and tobacco," he said. In a letter to Rep. Ganske, the country's largest tobacco marketer, Philip Morris USA, also warned about the ad curbs, with VP-Government Affairs John Scruggs calling them "clearly unconstitutional."
"We have been talking recently about our desire for strong, meaningful and sensible federal regulation of cigarettes. [This bill] does not meet that test," said the letter.
Ira Teinowitz, April 24, 2000, Adage.com
Copyright © April 2000, Crain Communications Inc. All rights reserved.