ANA Executive Vice President Dan Jaffe issued a statement on Friday saying: "We are extremely disappointed by the Senate's action."
Last Thursday, the Senate passed legislation that gave the Food and Drug Administration governance over tobacco while placing severe restrictions on cigarette advertising, which Jaffe called "unprecedented."
Essentially, the tobacco industry agreed to the legislation in return for a government buy-out of the nation's tobacco farmers, ending depression-era tobacco price supports. Jaffe complained about the nature of the regulation's passage, contending that lawmakers snuck in this regulation onto an unrelated corporate tax law. "These are very separate issues," he said.
The legislation now goes before the House of Representatives. If passed, it is likely to destroy tobacco advertising in its current form. "Certainly, it would make it virtually impossible to advertise effectively on a national basis," Jaffe said.
Under the new legislation, advertisers would be prohibited from using color in their print ads, and would be required to include more disclosures in each ad.
In addition to the federal regulation, individual states would be free to modify the legislation's stipulations as they see fit. Thus, producing a national print campaign that meets all federal and state requirements would be exceedingly difficult for any tobacco marketer.
Beyond the ramifications for the tobacco industry, the ANA is fearful of the precedent this legislation will set for all advertisers. "This amendment goes a long way to create dangerous precedents that are likely to be imposed to restrict other types of advertising using the children's protection argument," Jaffe said.
Jaffe mentioned that the Supreme Court has gone out of its way in recent years to disallow the categorization of products so that they would be subject to different laws.
Therefore, regulation of tobacco would open up the doors for similar regulation in other categories.
He believes that the Senate is using the idea of protecting children to further an anti-political agenda. Requiring advertisers to completely avoid children is impossible, he says. "We don't live in a society where you can hermetically seal people who are 21 and over," he said.
In criticism of the legislation's legality, Jaffe cited the opinion of various legal experts as well as officials from such disparate groups as the Washington Legal Foundation and the American Civil Liberties Union. According to Jaffe, they all say that this new legislation is identical to a proposal that in 1996 was found to be in violation of the First Amendment.
Jaffe said the next step for the ANA was to continue lobbying against the legislation. Yet he acknowledged that challenging the law's constitutionality may not ultimately matter. "Just because something is unconstitutional doesn't mean it won't pass Congress," he lamented.