The advertising prohibitions would be imposed on manufacturers, distributors, and retailers. Non-participating manufacturers would not only be denied the benefits of limited liability, but would also have to pay a user fee. The bill would also provide for massive government-funded anti-smoking campaigns.
At this writing, however, the possibility of legislation appears to be diminishing. A
failure by Congress to produce a law would turn primary attention back to the suit in
which a broad-based coalition of tobacco manufacturers, advertisers, and retailers, among
others, is challenging the FDA’s tobacco rules.
In late 1996, a North Carolina federal district court judge invalidated the FDA’s
restrictions on tobacco advertising as beyond the agency’s statutory authority. That court,
however, upheld the FDA’s attempts to regulate the product itself.
The district court’s decision was challenged before the Fourth Circuit court of appeals.
Based on the oral argument, many expected the appellate court to reverse the district
court, and to find that the FDA lacked any authority at all to regulate tobacco products (or their advertising).
But the death in early February of Judge Donald Russell, who had presided over that
three-judge appellate panel, prompted much speculation about what would happen next.
On April 17, the Fourth Circuit set the case for reargument before a three-judge panel, the
makeup of which has not been announced.
Thus, the government has another opportunity to defend both its existing (but
not-yet-in-effect) restrictions on tobacco advertising, and its decision to regulate tobacco as a drug or device. Oral argument is set for June.
