• by Karl Greenberg , June 15, 2009

On Friday, the day after the Senate passed the Family Smoking Prevention and Tobacco Control Act, the House of Representatives did likewise. Now the bill is on its way to the President's desk, where it is sure to be signed into law. The new law will give the Food & Drug Administration and state lawmakers the power to strictly limit tobacco-ad creative, media placement, promotional activity, and language, among other things.

Dan Jaffe, executive vice president of government relations for the Association of National Advertisers, says the ANA and other groups -- including, perhaps surprisingly, the American Civil Liberties Union -- are preparing to mount a legal challenge before the U.S. Supreme Court, arguing the law would constitute violation of First Amendment provisions.

Q: Who will join ANA in the suit?

A: I am almost certain tobacco companies will sue. We will join in some way or another, either as a litigant or as having a friend-of-court brief.

Q: What are some examples of legal precedents?

A: Lorillard [Tobacco Company] sued [the Attorney General of] Massachusetts on state regulation of outdoor advertising that would have prohibited ads within 1,000 feet of schools [Lorillard v. Reilly]. The Supreme Court said those regulations were a violation of the First Amendment. We think it is quite likely the court may look at the total package and see that it is designed with only one purpose: to prevent sales of tobacco products to anyone.

The First Amendment says Congress shall make no law abridging the freedom of speech. And the Supreme Court makes clear there should be no distinction between products. There have been cases involving so-called "sin products," contending that they should be restricted under the First Amendment. But the Court has ruled against them. William Rehnquist, as Chief Justice, wrote the decision that, in fact, there must be no distinction between categories or products because once you start putting restrictions on one product, you put precedence on others.

We are already seeing that from people like Congressman Jim Moran (D-Va.), who wants certain drug products advertised only after ten at night.

People like Lawrence Tribe [Harvard professor of constitutional law] -- a man who is clearly no friend of the tobacco industry and who has argued against the tobacco companies in the past -- says this rule-making is unconstitutional; the ACLU says it goes too far, and has come out with a letter in the past week calling the rules unconstitutional.

Q: What is the most contentious part of the bill?

A: The most significant part of the bill is that it allows states and localities to put additional restrictions on marketing of tobacco products. If you have multiple restrictions from different states, then you basically can't do any national advertising.

In the past there was a Federal preemption that prevented this. The theory was that the government should have the only word with regard to advertising restrictions. Now, while substantially increasing regulations, the government is lifting that preemption, and that can only lead to making it impossible to advertise.

Q: Hasn't tobacco advertising already been substantially diminished as part of the Master Settlement Agreement in 1998 [wherein seven tobacco companies agreed to voluntarily change the way they marketed and pay $206 billion, plus finance a $1.5 billion anti-smoking campaign]? Why care if there's more?

A: Having to do something voluntarily is very different than having to do it with a gun to your head.

Q: What else in the bill is overtly unconstitutional to your thinking?

A: Clearly outdoor-advertising provisions [stating there cannot be tobacco billboards within 1,000 feet of schools]. The Lorillard case in Massachusetts very specifically stated that you could not have the kind of ban on advertising required under this rule. When the issue came up in Massachusetts, there were maps drawn; it turned out Lorillard couldn't advertise anywhere. It became a de-facto ban because there are schools everywhere, especially in any dense-population area. Lorillard won that case, and Massachusetts law set the legal precedent.

Q: Should there be any rules restricting advertising and marketing of tobacco products?

A: As long as it is a legal product, tobacco has to be regulated in a way that doesn't violate the First Amendment. Listen -- if Congress wants to ban tobacco products, you will hear not a word about it out of the ANA; that's not an issue for us. But if you have a legal product, you have to regulate it in legal ways. And we think this law goes way beyond that.

If the First Amendment means anything, it means speech restrictions are a last -- not first -- resort. The First Amendment was not put in place to protect advertisements by the Boy Scouts; it was put in place to protect controversial speech, because the framers knew if you don't like a particular group, you will try to suppress their speech.