Tobacco Advertising Faces Radical Limitations; Tougher Labeling, Counter-Ads Required by Pact
By Richard T. Kaplar
The settlement between five tobacco companies and 40 state attorneys general announced June 20 would alter the tobacco advertising landscape far more radically than the banning of televised cigarette ads in 1970 — and promises to raise significant First Amendment concerns.
The question now: Can the deal be implemented? The agreement capped months of closed-door negotiations and set in motion a cumbersome implementation process likely to extend well into next year.
So far, however, not much has happened — mainly because key aspects of the settlement require new federal legislation, and Congress is not expected to take up the issue until at least September.
Advertising is just one facet of the 25-year, $368.5-billion deal under which tobacco companies would compensate states and individuals in exchange for immunity from most future liability claims.
The settlement spells out restrictions on print media and point-of-purchase advertising; outright bans on billboard and Internet advertising; tougher labeling requirements on cigarette packs; and an extensive counter-advertising campaign (see box).
Many of the ad restrictions are similar to those contained in an FDA rule adopted in August 1996 and now being appealed to the Fourth Circuit. In April a U.S. district court in North Carolina ruled that the FDA lacked statutory authority to impose those tobacco ad restrictions. The Fourth Circuit heard oral arguments on Aug. 11.
In addition to the FDA-style restrictions, the settlement contains a host of additional advertising provisions. For example, human images and cartoon characters (like the Marlboro Man and Joe Camel) would be banned, as would product placements in movies, TV shows, and video games. Cigarette packages would have to devote the top 25 percent of the front panel to the surgeon general’s health warnings. And the industry would have to fund a $500-million annual education program consisting primarily of anti-smoking TV spots.
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