regulation

Mixed Reaction To Tobacco Regulation Vote

smokingThe 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.

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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.

2 comments about "Mixed Reaction To Tobacco Regulation Vote ".
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  1. Stanley Trissell from DaytonDMA.com, June 12, 2009 at 8:46 a.m.

    Never ceases to amaze me when the alcoholics on Capitol Hill (some of whom have killed while drunk) pass legislation designed to ultimately end the sale and consumption of tobacco but not booze. It's like squishing a "dangerous piss ant" while the monsters who continue to get their daily routine of corn mash go on their merry way killing, and maiming, and passing laws in congress. Socialism has arrived! Time to get long hair and a minivan painted with flowers and hit the streets... or have a tea party. Idiots!

  2. Stacey Schaller from SBS Advertising, June 12, 2009 at 1:44 p.m.

    Stanley, good point! But if this legislation holds, it gives an excellent "leg up" to create similar legislation for beverage companies.

    Also, I noted how many people are hollering about the First Amendment with regard to advertising Tobacco products. It is interesting that the same argument is not made regarding General Mills' use of so-called health claims on their Cheerios packaging. The health-food industry has been hamstrung by decades of similar advertising regulations. I've never seen R J Reynolds go to bat for Quaker Oats!

    Granted, The FDA has been empowered to regulate foods and health claims because of wild and fictitious claims made by some health food and pharmaceutical manufacturers. But in their zealousness to "protect" consumers, they go after companies like GM, who have and have made provable claims.

    Tobacco, on the other hand, is a verifiable health hazard (as is excessive alcohol consumption), and as such, falls squarely in line with the mandate of the FDA. I believe protective regulations (if properly administered) are completely Constitutional.

    The bottom line is that we need to advertise responsibly and market products that are good for our customers. That's called self-restraint. When we show self-restraint, the government does not need to step in.

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