Tobacco Advertising Faces Uncertain Future

By Richard T. Kaplar

The Marlboro Man is still alive but the future of tobacco advertising is anything but certain in the wake of the McCain bill's collapse on June 17

The House Republican Caucus is working on a new tobacco bill, expected to be unveiled in late July, that would write into law the severe ad restrictions contained in the FDA regulation now in the courts. The House bill, however, would give enforcement authority to the FTC rather than the FDA.

On the Senate side, tobacco foes could try to attach the McCain ad restrictions to other legislation, but nothing is definite. Congress may run out of time this fall — but there's always next year.

Meanwhile, the Fourth Circuit heard oral arguments again in June on whether the FDA has jurisdiction to regulate tobacco advertising. A lower court ruled that the FDA did not have authority.

If the Fourth Circuit agrees with the district court, and if Congress fails to act, tobacco advertising may look much the same for now — except in states that have reached their own settlements with tobacco companies. In Minnesota, for example, tobacco billboards, bus and taxi ads, and promotional items will be a thing of the past by early next year.