Tobacco Settlement: Continued
The settlement is to be implemented through a combination of measures: legislation by Congress, a binding contract called a “national tobacco control protocol,” and consent decrees with individual states.
The advertising provisions would be contained in the national protocol and consent decrees but not in the legislation. By keeping the ad restrictions “voluntary” rather than statutorily mandated, the parties hope to avoid a First Amendment fight. According to the settlement, the protocol to be signed by the five tobacco makers would not be subject to
facial constitutional challenge.
The companies are Philip Morris Companies Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., and United States Tobacco Co.
The key element of the settlement package, however, is the legislation — and it’s not a sure bet. Certain provisions of the agreement can only be enacted by law, such as extending the FDA’s statutory authority and ranting the tobacco companies protection from civil liability. Without legislation the entire settlement — including the ad restrictions — would collapse.
Anti-smoking forces, however, want to see the advertising provisions written into law even if it sparks a constitutional brawl.
“Companies can make voluntary decisions about their own businesses, including how they advertise. But if Congress mandates these broad advertising restrictions, that legislation would raise serious First Amendment concerns,” said John Fithian, counsel to the Freedom to Advertise Coalition.
Even if the tobacco companies involved in the settlement refrained from challenging a law containing ad restrictions, other companies engaged in tobacco advertising and marketing — and even tobacco consumers — could have standing to mount a First Amendment fight.
But progress on any bill promises to be slow. No legislation has been introduced in either the House or Senate, although the industry, attorneys general, and anti-smoking groups are said to be working on their own drafts.
The Senate Judiciary Committee has held three hearings and the Senate Commerce Committee one hearing, but at least seven committees in the Senate alone can claim jurisdiction over various aspects of the agreement. A full slate of hearings is anticipated for the fall. No hearings have been held in the House.
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