The content of advertising would be restricted as well. Human images and cartoon
characters could not be used. Except for a few narrow exceptions, labeling and
advertising of tobacco products could consist only of black text on a white background.
Color could be used only in ads in the few adult-only facilities where vending machines
and self-service displays are permitted, and in magazines read primarily by adults.
The bill would also prohibit the sale of any item (other than tobacco products) or
service bearing a brand name or product identification similar to those used for tobacco
products. Gifts to tobacco purchasers would be prohibited, as would sponsorships of any
athletic, musical, artistic, or other social or cultural event, entry, or team.
The McCain legislation would restrict not only commercial speech, but also fully
protected political speech. All lobbyists employed by tobacco manufacturers, retailers, or
distributors would be required to sign contracts agreeing to refrain from supporting or
opposing any federal or state legislation, or any governmental action, without the express
consent of the tobacco-related employer. The McCain bill would expressly dissolve the
Tobacco Institute and the Council for Tobacco Research, U.S.A.
Perhaps aware of the extremely dubious constitutional bases for these measures, the
Commerce Committee has sought to shield these provisions from judicial scrutiny. First,
the provisions would be embodied in consent decrees entered into between tobacco
manufacturers and states. Any entity refusing to enter into such voluntary agreements
would not, in the case of a tobacco manufacturer, be entitled to the provisions limiting the
liability of tobacco manufacturers against civil suits.
Similarly, any non-complying state would be ineligible for congressional funds
dispensed under the legislation. For good measure, the consent decrees are to include
provisions waiving the tobacco companies’ constitutional claims under state and federal
law. Each tobacco manufacturer would also be required to enter into a National Tobacco
Control Protocol that would supposedly be enforceable in court.
