Ready to hit the Senate floor this fall is legislation that would ban color or imagery in tobacco ads in places where 15% of the audience is under 18, prescribe type sizes and dimensions for health warnings, and limit items to be used in giveaways and sponsorships.
If that sounds familiar, it's because many tobacco makers have voluntarily agreed to most of them. So why, then, are advertising groups ready to fight the proposed curbs tooth and nail?
Their concern isn't who regulates tobacco or even the potential impact on tobacco advertising. Instead, what keeps them up at night is the precedent the curbs could set for food and alcohol marketing, which are both under fire. The worry is that the tobacco-ad restrictions could fuel demands for similar restrictions for those products and serve as evidence that the government has a right to impose the curbs.
"It's a de facto ban on advertising of a legal product, and it gives all of us pause," said Dick O'Brien, exec VP of the American Association of Advertising Agencies. "What we must defend is the right of being able to market legal products to the public. If this passes, there will almost certainly be a First Amendment [legal] challenge."
Dan Jaffe, exec VP of the Association of National Advertisers, said, "There has never been a situation where 15% of the audience determines whether a product could be advertised. If it does move the ball, it is going in a direction that we don't like. We are concerned about the precedent."
Ad groups contend the curbs are "content-based censorship" that isn't allowed under free-speech decisions by the Supreme Court. "All of the various disclosure requirements [in the bill] place the government in the role of copywriter," said a letter the 4A's, the ANA and the American Advertising Federation sent to Capitol Hill. They suggest the government is illegally "seizing" ad space and compelling speech.
Tobacco critics and Sen. Edward Kennedy, D-Mass., who will send the bill to the Senate this fall, argue that the government should be able to regulate a product that kills. The legislation would turn over tobacco regulation to the Food and Drug Administration.
Mr. Kennedy has more than 50 co-sponsors for the bill. An aide to Rep. Frank Pallone Jr., D-N.J., said House hearings on similar legislation will be scheduled upon Congress's return in September.
Mr. Kennedy has suggested the ad curbs are necessary to stop tobacco makers from marketing their products to kids. His legislation has won the endorsement of the market leader, Altria, but other tobacco-makers have complained the marketing ban would lock in share and make it impossible to compete.
At a hearing last week, Sen. Richard Burr, R-N.C., said he opposed the FDA regulation of tobacco and intended to work on the Senate floor to offer alternatives to the FDA for regulation.
Ira Teinowitz, Advertising Age. July 30, 2007
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