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folks climb the Hill
Appealing to Congress for tough cig ads laws
By Jeff Bercovici
The tobacco industry's voice has been greatly diminished in recent years, as it retreated first from TV, then billboards two years ago, and over the past year from magazines, in the face of rising pressures from the anti-smoke folks.
Store display areas appeared to be next. Then a month ago, in a decision that surprised many, the Supreme Court knocked down a Massachusetts law restricting store tobacco promotions.
But the tobacco lobbies have no time to celebrate.
Already, the smoke opponents are mounting efforts in Congress that would allow the federal government to fully regulate the sale and advertising of tobacco products, with the desired end of all but eliminating their marketing.
All this is an unpleasant prospect for the dwindling number of media outlets that still derive a significant portion of their income from tobacco, notably point of purchase.
The 5-4 high court decision was hardly the resounding victory tobacco lawyers hailed it as, but it was still a serious setback, says Robert Kline, staff attorney for the Boston-based Tobacco Control Resource Center, which backs local efforts to curb tobacco advertising.
In overturning the Massachusetts law’s main provision, a ban on advertising within 1,000 feet of schools and parks, the Supreme Court's ruling effectively invalidated similar regulations in cities across the country, including New York, Chicago and Baltimore.
"Last year the Supreme Court said that the Food and Drug Administration could not regulate the tobacco industry," says Kline. "This year the Supreme Court said that state and local governments cannot regulate the tobacco industry. The next place this will be discussed is in Congress."
Kline and his allies will be seeking two things from Congress: First, they want legislators to extend the mandate of the FDA to include tobacco products--and thus tobacco advertising.
They also want revisions to a 1965 federal law affecting tobacco advertising that has stood in the way of state and local laws seeking to impose much tougher ad restrictions.
Of the bills now before Congress proposing to put tobacco under FDA jurisdiction, Kline favors one sponsored by California Rep. Henry Waxman.
He calls a competing bill sponsored by Virginia Congressman Tom Davis "the Philip Morris Bill," Virginia being a strong tobacco state.
"It's so bad even the other tobacco companies don't like it. It would give politicians cover to vote for what looks like a tobacco control bill but is really a very weak bill with all sorts of problems."
The law Kline and his allies want revised is the Federal Cigarette Labeling and Advertising Act, which stipulates that "no requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes."
In its June 29 decision, the Supreme Court said that the 1965 act preempts attempts by state and local governments to restrict cigarette advertising.
With no similar laws on the books regarding cigars and smokeless tobacco, the Court was forced to revert to a constitutional argument in overturning the ban on advertising for those products.
A majority ruled that the ban infringed on the commercial speech rights of marketers by interfering with their ability to reach legal-age customers.
Even the dissenting justices called the Massachusetts law "poorly tailored."
This reasoning gives heart to anti-tobacco crusaders, who interpret it as meaning that the Court won't interfere with more carefully-designed restrictions by local and municipal authorities.
"The First Amendment issue is very limiting but it does leave the door open for local governments if Congress ever lifts the preemptive statute," says Kline.
August 1, 2001 © 2001 Media Life
-Jeff Bercovici is a staff writer for Media Life.
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