• by Karlene Lukovitz  @KLmarketdaily, June 7, 2010

Citing wide-ranging implications for commercial free speech rights under the First Amendment, the Association of National Advertisers (ANA), the American Association of Advertising Agencies and the American Advertising Federation have filed a "friends of the court" brief in support of tobacco companies appealing a lower-court ruling that upheld the constitutionality of most of the regulations in the Family Smoking Prevention and Tobacco Control Act of 2009. 

In the appeal, which is being heard by the U.S. Court of Appeals for the Sixth Circuit case, the tobacco companies are seeking to overturn a ruling by the U.S. District Court for the Western District of Kentucky in "Discount Tobacco City & Lottery, Inc. et al. v. United States of America." The other plaintiffs include Lorillard Tobacco, National Tobacco, American Snuff Company, R.J. Reynolds Tobacco and Commonwealth Brands.

The District Court struck down the act's bans on using color and graphics in tobacco ads. However, the court upheld its other restrictions.

Those restrictions include: banning all outdoor advertising for tobacco products within 1,000 feet of elementary and secondary schools and playgrounds; requiring all ads to include (in addition to the existing Surgeon General's warning) a government-specified warning statement about the dangers of using tobacco; banning the use of promotional items carrying the name or logo of a tobacco brand, as well as promotions such as giveaways and rebates; requiring tobacco sponsorships of athletic and other events to be in corporate rather than brand names; requiring compliance with more stringent state/ local government laws; and authorizing implementation of more stringent federal requirements within seven years, if the number of minors who use tobacco products has not decreased by 50% from 1994 levels.

The advertising groups' amici curiae brief, written by First Amendment attorney Robert Corn-Revere of the law firm Davis Wright Tremaine LLP, argues that the district court's decision went against 30 years of legal commercial speech precedents, including U.S. Supreme Court decisions.

Most recently, in 2001, the Supreme Court invalidated state regulations and other advertising restrictions intended to prevent children from seeing ads for products that they are too young to buy. In ruling in "Lorillard Tobacco Co. vs. Reilly," the court stated that "so long as sale and use of tobacco is lawful for adults, [there is] a protected interest in communication about it [that] adult consumers have an interest in receiving."

"The Supreme Court has made it clear that there is no 'vice exception' to the First Amendment," and letting the District Court ruling stand would establish "very dangerous" precedents with potentially wide-ranging implications for many other advertisers, said ANA EVP, government relations Dan Jaffe, in announcing the brief.

Specifically, the brief argues that the District Court erred by holding that restrictions on non-deceptive speech about a legal product "to an overwhelming preponderance of adults" can be justified because underage individuals might see the materials. It also argues that the court demonstrated inconsistency and erred in applying the law by not striking down all of the marketing restrictions in the Tobacco Control Act.

In addition, the brief argues that the District Court was wrong in concluding that non-speech restrictions had been adequately tried and had failed. "The Supreme Court has held that government entities only should regulate speech as a 'last resort,' and yet there was clear evidence that other non-speech restricting means of protecting minors from tobacco products are effective and could be more effective if fully implemented," contends Jaffe. "In this case, the government failed to demonstrate either that the Act's broad marketing restrictions actually will reduce youth smoking or that non-speech-related means would fail to do so."