Controlling tobacco ads - censorship or curbing drugs?
Approved by the Clinton administration, the FDA rule is an effort aimed at curbing underage smoking.
The FDA advanced its authority over tobacco product advertising (excluding cigar and pipe tobacco as such is primarily used by adults) after ruling that nicotine is an addictive drug and cigarettes and smokeless tobacco are drug delivery devices regulated under the Food, Drug and Cosmetic Act.
The rule, as published in August 1995, would require the following, among other restrictions:
* Other than cigarette ads appearing in adult newspapers, magazines or other publications, ads would be limited to black and white text on a white background, or in other words "tombstone" ads. This would include publications with a 15 percent youth readership or that have more than two million readers under 18.
* Promotional giveaways such as T-shirts, hats, gym bags, etc. displaying tobacco brand names, would be banned. Programs that provide non-smoking items in exchange for tobacco proof of purchase and which offer tobacco purchasers the opportunity to participate in contests and lotteries, would also be prohibited.
* Outdoor ads such as billboards would be barred within 1,000 feet of schools or playgrounds. Outdoor ads beyond 1,000 feet, including bus or other transit ads, would also have to be tombstone format.
* Sponsorship of events such as athletic, musical, artistic, etc. would be limited to the corporate name. For example, the Kool Jazz Festival would be re-named the Brown & Williamson Jazz Festival.
* Tobacco advertisers would be required to fund a $150,000,000 yearly campaign to help curb underage smoking, with each maker's expenditure based on the amount it spends per year on advertising.
* Tobacco makers would be forced to submit samples of all labels and ads to the FDA on an annual basis.
The agency concluded its proposal stating that "additional measures" will be taken if the number of underage smokers has not decreased by 50 percent within seven years after any final ruling.
The FDA restriction rationale is that advertising and promotional endeavors can greatly govern a young person's decision to smoke or use smokeless tobacco products.
The agency cited studies that show 30 percent of three-year olds and 91 percent of six-year olds could identify the Joe Camel cartoon character as a symbol of smoking and thus, awareness of tobacco products and messages among even the youngest children is extremely high.
Although state laws prohibit tobacco sales to minors, such products are easily accessible to children, according to the FDA. Further the agency insists that tobacco products are among the most heavily advertised products in the United States.
Promotion of tobacco products with items such as t-shirts, gym bags and hats as well as event sponsorship also reaches young Americans, according to the FDA. The agency reasoned that such items when used or worn by young people become "walking billboards," promoting the products in school or other areas where tobacco advertising is commonly prohibited.
Move to have
FDA take charge
In response to the proposed regulations and the Clinton administration's efforts to shift regulatory jurisdiction over tobacco advertising from the Federal Trade Commission (FTC) to the FDA, the advertising industry argued in a legal challenge that the plan violates the First Amendment and usurps Constitutional authority.
American Advertising Federation (AFA) President Wally Snyder said, "the restrictions proposed by the FDA are nothing short of an attempt to end run the legislative process." Snyder added, "Congress has already given the FTC authority in this area. The FTC has investigated thoroughly in cases where tobacco advertising has been questioned. They know the industry and have the expertise."
The American Association of Advertising Agencies (AAAA) says, "We are concerned about the rights of marketers to advertise legal products, and the precedent this would set for other `politically incorrect,' but legal products.... In its effort to modify and change the behavior of individuals, the federal government has elected to suppress speech. We believe, and the courts have upheld, the tenet that federal government does not have this right."
President Clinton said, "It cannot be a violation of the freedom of speech in this country to say that you cannot advertise to entice people to do something which they cannot legally do.... So I just don't buy the first amendment argument. It's just not true."
Clinton also said, "When Joe Camel tells young children that smoking is cool, when billboards tell teens that smoking will lead to true romance, when Virginia Slims tell adolescents that cigarettes may make them thin and glamorous, then our children need our wisdom, our guidance and our experience."
Industry fears losses
According to the advertising industry, magazines will lose pages; Agencies will lose major accounts; and outdoor advertising will decrease. People will lose their jobs,
The industry contends that what is more disturbing is the precedent the proposal could set for the future. The article asked, "Will alcoholic beverage advertising be the next category targeted? And if so, what's to stop the government from regulating ads for any products proven to have potentially negative side effects: Caffeinated beverages? Artificial sweeteners? High-sodium foods? All-terrain vehicles?"
"That is exactly what has happened in Baltimore," according to an Editor & Publisher report. (Additionally, a recent effort seeking similar restraints on alcohol ads has arisen, apparently emboldened by the FDA's attempt to regulate tobacco ads.)
Recent ad bans in Baltimore, involved the U.S. Circuit Court of Appeals and a federal district court which upheld a Baltimore ordinance that banned fixed outdoor ads for tobacco and alcoholic beverage products from residential areas.
In doing so, questions were raised by the advertising industry as to whether the First Amendment placed "effective roadblocks before governments determined to outlaw honest advertising."
The ad ban was justified by the city because, it claims, studies show advertising for these products stimulates the demand for them among minors. Thus, the ban would aid in the enforcement of laws against underage smoking and drinking.
According to the advertising industry, the judges who reviewed Baltimore's actions "... accepted the city council's conclusions about advertising's role in promoting underage drinking and smoking almost at face value without demanding any proof, though advertisers argued the city relied on `evidence' that was controversial and inconclusive at best."
Cincinnati also has a pending lawsuit pertaining to the ban of tobacco ads. Recently, in San Francisco an ordinance was introduced by the Board of Supervisors to prohibit tobacco ads within 1,500 feet of parks, schools, churches, recreation centers and other sites. Eller Media Co. and Gannett Outdoor Group plan to testify against the proposal during a public hearing, expected in the near future.
Tobacco ad bans are not an issue of debate exclusive to the United States, as Canada, Russia and Australia have had their own controversies in recent years.
Recently, the Canadian Supreme Court overturned a 1988 law that banned practically almost all advertising of tobacco products. The Canadian Supreme Court ruled that the sweeping tobacco ad ban violated free expression; and that there was no direct scientific proof linking ad bans and decreased tobacco use.
Despite this Canadian ruling and the tobacco industry's ongoing dispute of studies that link ads to underage smoking, another study released last month has found that advertising is a stronger factor than peer pressure in encouraging children under 18 to smoke.
Large advertising campaigns by cigarette manufacturers were correlated with increases in smoking among youths 14 to 17 years old according to a study conducted by cancer researchers at the University of California at San Diego and another study as reported in the New York Times.
These studies conflict with the contentions of tobacco companies that their advertising does not lead children to start smoking.
It is also interesting to note that according to a New York Times News Service report in 1994, internal documents from a major tobacco company suggest that executives struggled with whether to inform the surgeon general in 1963 what they knew about the hazards of cigarettes. At the time, the surgeon general was preparing a report indicating for the first time that cigarettes posed a major health hazard.
Instead of releasing their research results and working on a safer cigarette, the executives decided to remain silent and pursue a public relations and legal strategy of admitting nothing, according to the report.
In one of more than 100 documents the firm's general counsel said their research had discovered that cigarettes caused or predisposed people to lung cancer, encouraged heart disease and may cause emphysema. The statements oppose the tobacco industry's assertions over the past three decades that it has not been substantiated that cigarettes are harmful or that nicotine is addictive, according to the report.
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|Author:||Flotron, John A.|
|Publication:||St. Louis Journalism Review|
|Date:||Nov 1, 1995|
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