• by Karl Greenberg , June 11, 2009

The last big marketing restriction on cigarettes was 1971, when TV ads for tobacco were banned in the U.S. Now the Senate has passed -- by a wide margin -- the Family Smoking Prevention and Tobacco Control Act, which gives the Food and Drug Administration power to control manufacture, marketing and advertising. The President is expected to sign the legislation. Hitherto, because of strong Congressional efforts by tobacco states, tobacco has had little regulation.

In addition to giving the FDA power to make flavorings in tobacco a thing of the past, the law would also make cigarette producers stop using terms that suggest cigarettes have low tar or are "light." New marketing restrictions next year would include a ban on all outdoor advertising of tobacco within 1,000 feet of schools and playgrounds.

Dan Jaffe, executive vice president of the Association of National Advertisers, wrote in his "Regulatory Rumblings" blog that the rules are unconstitutional and that marketing-specific provisions should not have been included.

The bill was strongly opposed by Lorillard and Reynolds America, the second- and third-largest companies, which criticized it as being intended to protect Philip Morris's market dominance by restricting advertising and new products.

Dr. Georges C. Benjamin, executive director of the American Public Health Association, lauded the Senate's passage of the bill, saying: "The legislation will protect the health of Americans, particularly children, by giving the FDA the authority to regulate tobacco products. ... This legislation provides an opportunity to finally end the special protection enjoyed by the tobacco industry."

Among the regulations foreseen:

All tobacco advertising is to be black text on white background except in magazines, newspapers or other periodicals with 85% adult readership;

All advertisements and labels are to identify the tobacco product as a "nicotine delivery device";

All advertisements are to contain a government-dictated "brief statement" (in addition to the current Surgeon General's warning) to serve as a warning about possible dangers associated with the use of tobacco products;

The use of promotional items such as hats or T-shirts containing the name or logo of a tobacco product are to be banned, and other promotional techniques such as product giveaways, rebates or refunds prohibited;

Sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience mandated;

All advertisers of tobacco products to be required to fund and participate in a national public education campaign designed to discourage the use of tobacco products by minors.

The FDA would require the annual fund established for this campaign to total $150 million, and authorize the enactment of additional restrictions seven years after implementation of a final rule if the number of minors who use tobacco products has not decreased by 50% from 1994 levels.

"Congress has the power to decide how to regulate the tobacco industry, but it must do so in ways that do not violate the Constitution," says Jaffe.

"First, we believe the numerous marketing restrictions in the bill clearly violate the First Amendment," he says, adding that while the bill directs the Secretary of Health and Human Services to publish a final rule that is identical to the proposed rule adopted by the FDA in 1996, it allows no outside groups, "within a fair regulatory rulemaking process," to be heard on the constitutional defects of the mandated rule.

"In fact, legal experts from across the political spectrum agree that these unprecedentedly broad restrictions would result in a defacto ban on tobacco advertising," he says.

He adds that national advertising would be impossible because the rule also would allow thousands of state and local governments to impose additional more stringent advertising restrictions beyond those contained in the mandated rule, making national advertising virtually impossible.