• by Karlene Lukovitz  @KLmarketdaily, January 11, 2011

The Association of National Advertisers and the American Advertising Federation have filed in opposition to a series of graphic warnings proposed by the Food and Drug Administration that would appear on cigarette and other tobacco product packaging and in ads for these products.

ANA/AAF maintain that the graphic warnings proposed under the Family Smoking Prevention and Tobacco Control Act of 2009 are "excessive" and violate the First Amendment. 

The opposition comments argue that the FDA is proposing "vivid and shocking anti-smoking graphics to accompany new textual warnings on cigarette ads and packages without any consideration of whether they pass constitutional muster" and that the proposed requirements would convert product packages and marketing into platforms for the government's viewpoint. "The FDA should not be in the business of making lawful products and advertising 'difficult to look at,'" the filing states.

The warnings proposed by the FDA include graphics of cadavers, smoke coming out of a hole in a throat and a lung filled with cigarette butts. "These are not the type of neutral and factual labels that are constitutionally permissible," maintain the advertising-industry organizations.

The Tobacco Control Act contains "the most burdensome advertising restrictions ever passed by the Congress," according to ANA/AAF. They maintain that FDA proposal's underlying premise would set a dangerous precedent enabling government to mandate advertising language that is dangerous for all marketers.

The filing notes that the U.S. Supreme Court has held that government entities should only regulate speech as a "last resort," and that other, non-speech-restrictive means of protecting minors from tobacco products are effective and could be more effective if fully implemented.