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Tobacco Regulation Is Expected to Face a Free-Speech Challenge

The marketing and advertising restrictions in the tobacco law that Congress passed last week are likely to be challenged in court on free-speech grounds. But supporters of the legislation say they drafted the law carefully to comply with the First Amendment.

The law’s ban on outdoor advertising within 1,000 feet of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.

The controversy, legal experts say, involves tension between the right of tobacco companies to communicate with adult smokers and the public interest in preventing young people from smoking.

Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 1,000 feet of schools.

“Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody,” Daniel L. Jaffe, executive vice president of the Association of National Advertisers, said in an interview Monday. “We think this creates very serious problems for the First Amendment.”

His group represents 340 companies spending more than $100 billion a year on marketing and ads.

But supporters of the law say studies conducted since 2001 provide evidence that young people respond to cigarette marketing even when it is aimed at adults, showing that new restrictions are needed to curb illegal, as well as highly addictive and harmful, under-age smoking.

“The bill has been carefully drafted, and I am confident that the provisions will be upheld,” Henry A. Waxman, Democrat of California and prime sponsor in the House of the legislation, said in a statement Monday.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, an advocacy group that was a leader in pushing for the law, said: “Frankly, the tobacco industry and the advertising industry have never heard of an advertising restriction that they thought was constitutional. In this case, great care was taken to permit black-and-white text advertising that permits them to communicate whatever truthful information they have.”

President Obama announced last week that he would sign the legislation. A signing ceremony has not yet been scheduled, a White House spokesman said Monday. The ad restrictions would go into effect about a year after the legislation becomes law.

Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.

The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.

But the tobacco industry denies that any of its advertising is aimed at young people.

The new restrictions, based on regulations the Food and Drug Administration tried to issue in 1996, would be broad and deep. There is the 1,000-foot ad-free radius around schools. The black-and-white ad strictures apply to stores and to print ads except in publications with an adult readership of 85 percent or more.

Tobacco companies would also be prohibited from sponsoring sporting or cultural events or giving away T-shirts or caps. Any form of audio advertising would be limited to words without music. (Radio and television ads of tobacco products have been banned since 1971.)

The A.C.L.U. wrote a letter to senators on June 1 arguing that the legislation’s limits on commercial speech were broader than needed to accomplish the goal of reducing under-age smoking. The group suggested stronger enforcement of false-advertising laws and continuing efforts to warn the public, including young people, of the harms of tobacco products.

“The answer here is to provide countervailing messages,” Michael Macleod-Ball, chief legislative and policy counsel for the A.C.L.U. in Washington, said Monday. “Discourage smoking, rather than restricting this form of speech that has not been shown to have a sufficiently close nexus with youth smoking.”

As for the tobacco companies, it was unclear which would initiate a lawsuit. “We are examining all of our options at this point,” said Michael W. Robinson, spokesman for Lorillard Tobacco, which brought the Massachusetts suit. “Stay tuned.”

R.J. Reynolds has not decided on legal challenges, spokeswoman Maura Payne said.

Altria Group, which owns Phillip Morris, the nation’s largest cigarette company, and was the only major tobacco company to endorse the legislation, said in a statement last week that it believed some of the marketing restrictions were illegal.

David Sylvia, an Altria spokesman, said Monday in an e-mail message, “Given that the bill has not yet been signed, and given that the legislation would require regulation writing on this issue, it is too early for us to be commenting on the constitutionality of the advertising related regulations.”

In the 2001 case, the Supreme Court struck down a Massachusetts ban on tobacco ads, including outdoor billboards and signs that could be seen within 1,000 feet of any public playground and elementary or secondary school. That ban, which would have eliminated tobacco advertising in about 89 percent of Boston, is virtually identical to one standard in the new federal law.

The Supreme Court found it to be an unconstitutional limit of the First Amendment right to free speech in part because it was simply too broad. The effect “will vary based on whether a locale is rural, suburban, or urban,” Justice Sandra Day O’Connor wrote for the majority. “The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.”

Kathleen Dachille, a University of Maryland law professor and director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy, said the Massachusetts case turned on a lack of evidence linking youth smoking, which is illegal, to tobacco marketing ostensibly aimed at adults. She said the link has been reinforced in recent years by reports of the Institute of Medicine, the National Cancer Institute, a federal appeals court ruling on a tobacco-company fraud case, and at least a dozen peer-reviewed studies.

A May 28 report by the Congressional Research Service, a branch of the Library of Congress, noted the difficulty of making advertising restrictions that are broad enough to be effective, yet narrow enough to be related to the government’s stated interest.

 

Duff Wilson, The New York Times. June 16, 2009

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