Rumors of the Lives to be Saved by FDA Tobacco Legislation Have Been Greatly Exaggerated: Ad Groups Hint At Constitutional Challenge to Ad Limits

One of the central arguments in support of the proposed FDA tobacco legislation is that the bill would greatly reduce youth exposure to tobacco advertising, thereby decreasing youth tobacco use. The bill would codify the advertising restrictions that were included in the original FDA tobacco regulations (which were overturned by the Supreme Court). These include limited magazines in which ads can be placed, restriction to black and white ads in many magazines, and no outdoor advertising within 1,000 feet of schools or playgrounds.

In fact, supporters of the legislation have claimed that enactment of the legislation would curtail tobacco marketing to youths.

In an article published yesterday in Advertising Age, Ira Teinowitz reports that advertising groups are prepared to challenge the constitutionality of the FDA legislation if it is enacted. These ad groups believe that the advertising restrictions in the FDA legislation are overly broad and therefore violate the First Amendment of the Constitution.

According to the article: "Ad groups are pinning the 'unconstitutional' label on Sen. Edward Kennedy's bid to let the Food and Drug Administration regulate tobacco and to impose a decade-old plan that imposes draconian marketing curbs on tobacco advertising. In an eight-page letter to the Massachusetts Democrat, who chairs the Senate Health Education Labor and Pensions Committee, the groups argue that the ad curbs -- which would limit tobacco makers to black-and-white text ads in most magazine ads and store signs; require additional warning labels; bar outdoor ads within 1,000 feet of schools or playgrounds; and ban giveaways of promotional items like hats or T-shirts -- are unconstitutional. The ad groups had two choices, to do nothing or to wade into what could be a lengthy Supreme Court battle. ... 'While the government has a legitimate interest in fighting the use of tobacco products by minors, the FDA's proposed regulations sweep far too broadly and result in massive censorship of truthful speech aimed at adults,' the Association of National Advertisers, the American Advertising Federation and American Association of Advertising Agencies said in the letter, which was sent yesterday. The ad groups said the Supreme Court has previously rejected in a Massachusetts case the 1,000-foot limit and so-called black-and-white "tombstone" advertising restrictions and that disclosure requirements would "overload" advertisements and likely be unconstitutional."

Also according to the article, Senator Kennedy claimed yesterday that the legislation would put an end to advertising that glamorizes smoking to kids: "'If we are serious about reducing youth smoking, FDA must have the power to prevent industry advertising designed to appeal to children wherever it will be seen by children,' the senator said. 'This legislation will give FDA the authority to stop tobacco advertising that glamorizes smoking to kids.'"

The Rest of the Story

No it won't.

The FDA cannot be given the authority to eliminate tobacco advertising that glamorizes smoking to kids because there is simply no constitutional way to do so.

Here is the conundrum: In order to be constitutional, the ad restrictions would have to advance a significant government interest - reducing youth smoking. To do so, the restrictions would have to be extremely broad. However, to be constitutional the ad restrictions need to be tailored as narrowly as possible. It is very unlikely that any advertising restrictions promulgated by the FDA would be both constitutional and substantially effective in reducing youth smoking.

Central Hudson provides a perhaps insurmountable obstacle to the advertising restriction approach to tobacco control, because of two basically conflicting prongs. First, the restrictions would need to be comprehensive enough so that they have a substantial impact on smoking behavior. Second, the restrictions would have to be crafted as narrowly as is possible to address the relevant government interest. It remains to be seen whether this can be done and if it can result in regulations that have a substantial public health effect. We simply don't have evidence yet that it can be done, and there is no justification for highly touting this bill as being the ultimate answer to curtailing cigarette advertising.

In addition, research has documented that the kinds of marketing restrictions imposed by the bill are not effective in reducing youth smoking, or even in reducing youth exposure to cigarette advertising. There are simply too many avenues for the tobacco companies to market their products, and anything short of a near total ban on advertising and promotion of tobacco products (which clearly would violate the First Amendment based on the Supreme Court's interpretation) is unlikely to have a substantial effect on youth smoking. A number of articles document that even major changes in policy, such as removing ads completely from youth-oriented publications, does not reduce youth exposure to this advertising to any meaningful (from a public health perspective) degree.

What is now quite clear is that the advertising groups (and most likely the tobacco companies as well) are prepared to file suit against the legislation if it is enacted, challenging the constitutionality of the advertising restrictions contained in the bill. Most likely, the same groups would file suit against any substantial subsequent advertising restrictions promulgated by the FDA, on the same grounds.

The rest of the story is that the claims of the Campaign for Tobacco-Free Kids and the other anti-smoking groups which are supporting this legislation that it will save lives by reducing youth exposure to cigarette advertising are little more than rhetoric. The truth is that any meaningful advertising restrictions are unlikely to hold up to constitutional scrutiny by the Supreme Court.

Is it really worth fighting a lengthy and expensive Supreme Court battle merely to find out that the promises of the anti-smoking groups are false promises?

I guess if you're a politician it's OK to make promises that you can't deliver. But as public health groups, we should be better than that. The Campaign for Tobacco-Free Kids and its followers in the anti-smoking movement are, unfortunately, not.