Ad Industry Asks Supreme Court To Hear Tobacco Marketing Case

by Wendy Davis, Nov 27, 2012, 5:29 PM

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Three advertising trade groups are asking the U.S. Supreme Court to agree to hear an appeal by tobacco companies that is challenging restrictions on cigarette marketing.

The ad industry groups argue that the Family Smoking Prevention and Tobacco Control Act violates cigarette companies' free speech rights. Among other provisions, the law bans companies from using color and images in most tobacco advertising, prohibits tobacco purveyors from sponsoring sporting or entertainment events, restricts statements about "modified risk" products and requires companies to use graphic warnings in ads.

"These restrictions and requirements strike at the heart of advertiser rights to convey truthful information about legal products to adults," the Association of National Advertisers, American Advertising Federation and American Association of Advertising Agencies argue in a friend-of-the-court brief.  "Moreover, the Tobacco Control Act could serve as a template for regulations aimed at disfavored products that would impair commercial speech far beyond tobacco-related issues."

A coalition of tobacco companies challenged the law in court.

In March, the Sixth Circuit Court of Appeals upheld most of the law, including provisions banning tobacco companies from sponsoring sporting or entertainment events, and prohibiting cigarette makers from distributing free gifts with purchases. The appeals court also upheld requirements that graphic warnings must account for at least the top 20% of ads. But the court also ruled that some portions of the law are unconstitutional, including the ban on color and images in tobacco ads.

Earlier this month, the tobacco companies asked the Supreme Court to take the case. The ad groups are backing that request, arguing that the regulations in the Tobacco Control Act could spread to other industries. "A paternalistic rule that forces companies to devote space on their packaging and in ads for government-mandated images that 'inflame' and attempt to dissuade consumers from purchasing lawful products leaves no product safe from such regulation."

The ad organizations also contend that prohibiting tobacco companies from sponsoring events "reflects an expansive view of government authority to decide what commercial speech is 'unfit' for children."

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