• by Karl Greenberg , December 1, 2009

The Association of National Advertisers (ANA) has filed a "friend of the court" brief supporting six major tobacco companies and two other industry groups in a civil suit against the U.S. The suit argues that regulations on tobacco advertising within the Family Smoking Prevention and Tobacco Control Act, passed earlier this year, are unconstitutional because the restrictions taken together make tobacco advertising untenable.

Dan Jaffe, EVP of the organization, tells Marketing Daily that the ANA supports the goals of the act -- to protect minors from using tobacco products -- but that restricting advertising is unconstitutional.

Says Jaffe: "This is much more than just a case about tobacco advertising. If this type of restriction is possible in tobacco, there is no question that it will be the opening wedge. The problem is that people are already starting to try to apply this to other products," he says. "Slippery slope is not a metaphor, it's a reality. The Supreme Court has made very clear there is not product-by-product exception. If it applies to one product category it applies to all."

The American Association of Advertising Agencies and the American Advertising Federation are co-signatories in the brief supporting Commonwealth Brands, Inc., et al. v. United States of America filed with the U.S. District Court for the Western District of Kentucky.

The industry brief, written by Robert Corn-Revere, a First Amendment attorney with the law firm Davis Wright Tremaine LLP, also says that provisions in the act could restrict advertising as free speech as defined in the First Amendment.

The act mandates the Food and Drug Administration to promulgate a rule that among other things, bans outdoor advertising for tobacco products within 1,000 feet of schools and playgrounds; requires all tobacco advertising and direct mail to be black text on a white background, except in magazines, newspapers or other periodicals with adult readership of 85% or more, or fewer than 2 million readers under the age of 18; bans the use of promotions and promotional items containing the name or logo of a tobacco product; allows sponsorship of athletic, musical, social or other cultural events in corporate name only; and requires all tobacco advertisers to fund and participate in a national educational campaign discouraging use of tobacco products by minors. The FDA would require the annual fund established for this campaign to total $150 million.

"I can't think of anything anywhere as near as extensive as this is," says Jaffe. "It affects every medium." He says the plaintiffs and amici curiæ expect the case to reach the Supreme Court within months.