The marketing and advertising restrictions in the tobacco law that the US Congress passed last week are likely to be challenged in court on free-speech grounds. But supporters of the legislation say they drafted the law carefully to comply with the First Amendment.
The law’s ban on outdoor advertising within 305m of schools and playgrounds would effectively outlaw legal advertising in many cities, critics of the prohibition said. And restricting stores and many forms of print advertising to black-and-white text, as the law specifies, would interfere with legitimate communication to adults, tobacco companies and advertising groups said in letters to Congress and interviews over the last week.
The controversy, legal experts say, involves tension between the right of tobacco companies to communicate with adult smokers and the public interest in preventing young people from smoking.
Opponents of the new strictures, including the Association of National Advertisers and the American Civil Liberties Union, predict that federal courts will throw out the new marketing restrictions. They say, for example, a 2001 Supreme Court decision struck down a Massachusetts rule that had imposed a similar ban on advertising within 305m of schools.
“Anybody looking at this in a fair way would say the effort here is not just to protect kids, which is a substantial interest of the country, but to make it virtually impossible to communicate with anybody,” Daniel Jaffe, executive vice president of the Association of National Advertisers, said in an interview on Monday. “We think this creates very serious problems for the First Amendment.”
His group represents 340 companies spending more than US$100 billion a year on marketing and ads.
But supporters of the law say studies conducted since 2001 provide evidence that young people respond to cigarette marketing even when aimed at adults, showing that new restrictions are needed to curb illegal, as well as highly addictive and harmful, under-age smoking.
“The bill has been carefully drafted and I am confident that the provisions will be upheld,” Henry Waxman, a Democrat from California and prime sponsor in the House of the legislation, said in a statement on Monday.
Matthew Myers, president of the Campaign for Tobacco-Free Kids, an advocacy group that was a leader in pushing for the law, said: “Frankly, the tobacco industry and the advertising industry have never heard of an advertising restriction that they thought was constitutional. In this case, great care was taken to permit black-and-white text advertising that permits them to communicate whatever truthful information they have.”
US President Barack Obama announced last week that he would sign the legislation. A signing ceremony has not yet been scheduled, a White House spokesman said on Monday. The ad restrictions would go into effect about a year after the legislation becomes law.
Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.
The Supreme Court in 1980 said such speech could be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.
But the tobacco industry denies that any of its advertising is aimed at young people.
The new restrictions, based on regulations the Food and Drug Administration tried to issue in 1996, would be broad and deep. There is the 305m ad-free radius around schools. The black-and-white ad strictures apply to stores and to print ads except in publications with an adult readership of 85 percent or more.
Tobacco companies would also be prohibited from sponsoring sporting or cultural events or giving away T-shirts or caps. Any form of audio advertising would be limited to words without music. (Radio and TV ads of tobacco products have been banned since 1971.)
The American Civil Liberties Union (ACLU) wrote a letter to senators on June 1 arguing that the legislation’s limits on commercial speech were broader than needed to accomplish the goal of reducing under-age smoking. The group suggested stronger enforcement of false-advertising laws and continuing efforts to warn the public, including young people, of the harms of tobacco products.
“The answer here is to provide countervailing messages,” Michael Macleod-Ball, chief legislative and policy counsel for the ACLU in Washington, said Monday. “Discourage smoking, rather than restricting this form of speech that has not been shown to have a sufficiently close nexus with youth smoking.”
As for the tobacco companies, it was unclear which would initiate a lawsuit.
“We are examining all of our options at this point,” said Michael Robinson, spokesman for Lorillard Tobacco, which brought the Massachusetts suit. “Stay tuned.”
R.J. Reynolds has not decided on legal challenges, spokeswoman Maura Payne said. Altria Group, which owns Phillip Morris, the nation’s largest cigarette company, and was the only major tobacco company to endorse the legislation, said in a statement last week that it believed some of the marketing restrictions were illegal.
David Sylvia, an Altria spokesman, said on Monday in an e-mail message: “Given that the bill has not yet been signed, and given that the legislation would require regulation writing on this issue, it is too early for us to be commenting on the constitutionality of the advertising related regulations.”
In the 2001 case, the Supreme Court struck down a Massachusetts ban on tobacco ads, including outdoor billboards and signs that could be seen within 305m of any public playground and elementary or secondary school. That ban, which would have eliminated tobacco advertising in about 89 percent of Boston, is virtually identical to one standard in the new federal law. The Supreme Court found it was an unconstitutional limit of the First Amendment right to free speech in part because it was simply too broad.
The effect, “will vary based on whether a locale is rural, suburban, or urban,” Justice Sandra Day O’Connor wrote for the majority. “The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.”
Kathleen Dachille, a University of Maryland law professor and director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy, said the Massachusetts case turned on a lack of evidence linking youth smoking, which is illegal, to tobacco marketing ostensibly aimed at adults. She said the link has been reinforced in recent years by reports of the Institute of Medicine, the National Cancer Institute, a federal appeals court ruling on a tobacco-company fraud case and at least a dozen peer-reviewed studies.
A May 28 report by the Congressional Research Service a branch of the Library of Congress noted the difficulty of crafting advertising restrictions that are broad enough to be effective, yet narrow enough to be related to the government’s stated interest.
Saudi Arabian largesse is flooding Egypt’s cultural scene, but the reception is mixed. Some welcome new “cooperation” between two regional powerhouses, while others fear a hostile takeover by Riyadh. In Cairo, historically the cultural capital of the Arab world, Egyptian Minister of Culture Nevine al-Kilany recently hosted Saudi Arabian General Entertainment Authority chairman Turki al-Sheikh. The deep-pocketed al-Sheikh has emerged as a Medici-like patron for Egypt’s cultural elite, courted by Cairo’s top talent to produce a slew of forthcoming films. A new three-way agreement between al-Sheikh, Kilany and United Media Services — a multi-media conglomerate linked to state intelligence that owns much of
The US and other countries should take concrete steps to confront the threats from Beijing to avoid war, US Representative Mario Diaz-Balart said in an interview with Voice of America on March 13. The US should use “every diplomatic economic tool at our disposal to treat China as what it is... to avoid war,” Diaz-Balart said. Giving an example of what the US could do, he said that it has to be more aggressive in its military sales to Taiwan. Actions by cross-party US lawmakers in the past few years such as meeting with Taiwanese officials in Washington and Taipei, and
The Republic of China (ROC) on Taiwan has no official diplomatic allies in the EU. With the exception of the Vatican, it has no official allies in Europe at all. This does not prevent the ROC — Taiwan — from having close relations with EU member states and other European countries. The exact nature of the relationship does bear revisiting, if only to clarify what is a very complicated and sensitive idea, the details of which leave considerable room for misunderstanding, misrepresentation and disagreement. Only this week, President Tsai Ing-wen (蔡英文) received members of the European Parliament’s Delegation for Relations
Denmark’s “one China” policy more and more resembles Beijing’s “one China” principle. At least, this is how things appear. In recent interactions with the Danish state, such as applying for residency permits, a Taiwanese’s nationality would be listed as “China.” That designation occurs for a Taiwanese student coming to Denmark or a Danish citizen arriving in Denmark with, for example, their Taiwanese partner. Details of this were published on Sunday in an article in the Danish daily Berlingske written by Alexander Sjoberg and Tobias Reinwald. The pretext for this new practice is that Denmark does not recognize Taiwan as a state under