Ad Groups Call Bill That Gives Marketing Oversight to FDA Unconstitutional
Jump to full article: Advertising Age, 2009-06-16
Author: Rich Thomaselli
Intro: Nearly a half-dozen entities, including the Association of National Advertisers, are aiming to block legislation passed last week to give the Food and Drug Administration regulatory control over the packaging, manufacturing and marketing of tobacco products.
In a lawsuit that's also expected to include tobacco companies and the American Civil Liberties Union, the groups will argue that marketing and advertising restrictions laid out in the bill fail to comply with free-speech protections provided by the First Amendment. . . .
The ACLU sent a letter to all senators prior to last week's vote, which read: "In the absence of a much more substantial narrowing of the advertising restrictions in a manner directly tied to the goal of reducing youth smoking, we urge the removal of the advertising restrictions set forth in Section 102 of the bill."
The ANA sent a similar letter. Dan Jaffe, exec VP-government relations at ANA, said he expects one of the tobacco companies to take the lead. "It is likely that some of the tobacco companies will challenge some of the legalities of these restrictions and the ANA will have to decide how to go forward. But we will play a role," Mr. Jaffe said. "This creates a substantial precedent that will affect other marketing categories." . . .
From a political perspective, it makes sense for the ANA to take somewhat of a backseat, as its interest isn't in protecting tobacco but preventing a such a precedent from spilling over to other less-polarizing advertisers.
. . .
"The advertising provisions were carefully crafted to address a very substantial need -- the marketing of the most dangerous product sold in the U.S.," Mr. Myers told Ad Age. "If there is any commercial speech that it is constitutional to restrict, it is the type of tobacco marketing covered by this legislation, in light of the significant record of the way the tobacco industry has marketed in a misleading way and to youths. The reality is, this bill has been debated intensely in the last two Congresses, and no objections were raised until Congress voted on final passage."
Jump to full article » |