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A Drive to Regulate Tobacco Ads

Senator Edward M. Kennedy, a longtime proponent of tobacco regulation, is spearheading legislation that would give the Food and Drug Administration oversight of the tobacco industry, including the marketing of cigarettes.

Senator Kennedy will have to overcome substantial legislative and constitutional obstacles to see his bill become law, and even then he may be foiled by an even more implacable foe in this election year - time.

"Even if this gets off the Senate floor, I can't see it being considered in the House before this Congress ends" with such politically important legislation involving prescription drugs, homeland security and corporate responsibility already on the drawing board, said Jennifer Duffy, a political analyst at the Cook Political Report in Washington.

Senator Kennedy, Democrat of Massachusetts and chairman of the Senate Health, Education, Labor and Pensions Committee, introduced the bipartisan legislation last month with Senator Michael DeWine, Republican of Ohio, and Senator Richard Durbin, Democrat of Illinois, among others.

A hearing on the legislation had been scheduled for last Thursday, but was rescheduled for July 30 because the Senate was debating the prescription-drug bill, said Jim Manley, a spokesman for Senator Kennedy. He said dates had not yet been determined for committee mark-up and vote, but it was hoped that the bill would move forward in September, after the August recess.

Senator Kennedy's attempt to bring tobacco under governmental scrutiny comes two years after the Supreme Court ruled that the F.D.A. does not have the authority from Congress to regulate tobacco as a drug or medical device. Adding a First Amendment complication, last year the Supreme Court limited the ability of state and local governments to regulate tobacco advertising in a Massachusetts case, arguing that restrictions on outdoor advertising, meant to protect children, violated commercial speech.

"If the tobacco advertising authority is extended to the F.D.A. by this proposed bill, there will likely be significant First Amendment problems presented by any such regulation," said Bruce Johnson, a First Amendment lawyer at Davis Wright Tremaine, based in Seattle.

Those in Senator Kennedy's camp do think there is enough time left this year to pass the legislation, and they are not fazed by the questions of constitutionality.

"We do think this will pass constitutional muster," Mr. Manley, Senator Kennedy's spokesman, said. The thinking is that the F.D.A. can obtain the authority, in general terms, to regulate the promotion and advertising of tobacco products, without running afoul of freedom-of-speech rights. The F.D.A. and other agencies have regulatory authority over many other products, they say, and tobacco would be no different.

As part of a statement introducing the legislation last month, Senator Kennedy said: "This legislation will give the F.D.A. the power to prevent industry advertising designed to appeal to children wherever it will be seen by children."

Mr. Johnson, the First Amendment lawyer, however, cited last year's Massachusetts case, Lorillard Tobacco v. Reilly, adding, "the governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults."

Advertising and media groups, of course, are using similar arguments in their opposition to legislation to regulate or restrict tobacco advertising.

"The U.S. Supreme Court has made clear for the past 20 years or so that commercial speech is protected by the First Amendment," said James Cregan, executive vice president for government affairs at the Magazine Publishers of America, based in Washington.

"No matter how controversial the product may be - whether it's tobacco or alcoholic beverages - if indeed it is a lawfully sold product or service, truthful and nondeceptive advertising of that product is protected by the First Amendment."

The perspective among tobacco companies is mixed. While some are against the legislation because they say it would limit competition, Philip Morris has for years been encouraging legislation to give the Food and Drug Administration authority to regulate tobacco, including marketing.

"We think that the whole industry would benefit from having clear rules established," said Mark Berlind, associate general council in the government affairs unit at Philip Morris. (One reason the company has split from other tobacco companies, according to some analysts, is because its brands are so popular that they would be less affected than others would be by advertising restrictions.)

"We're not interested in giving F.D.A. authority to make up new advertising laws," he added, "though we think they should have authority over Congressionally codified master settlement rules." Mr. Berlind was referring to the 1998 tobacco settlement in which tobacco companies agreed, with 46 states, to market their products only to adults.


Allison Fass, The New York Times. July 22, 2002

Copyright © 2002 The New York Times Company. All rights reserved.