ANA argues that Tobacco Control Act violates First Amendment.

The ANA has joined with two other industry groups in filing a “friend of the court” brief in an important lawsuit challenging the constitutionality of the Family Smoking Prevention and Tobacco Control Act.

Dan Jaffe, ANA Executive Vice President stated, “We strongly support the goals of the Act to protect minors from tobacco products. Unfortunately, rather than regulating conduct by imposing tougher restrictions on sales and access, Congress chose to restrict constitutionally-protected speech directed to adults. The ad restrictions in the Act, the most extensive ever passed by the Congress, could set a very dangerous precedent for other categories of advertising. We are very hopeful that the court will strike down the Act’s extraordinary speech restrictions for violating the First Amendment.”

The brief was filed with the United States District Court for the Western District of Kentucky in the case of Commonwealth Brands, Inc. et al v. United States of America, Civil Action No. 1:09-cv-117-M. In that case, six major tobacco companies have challenged the constitutionality of the Act passed earlier this year by Congress. Joining ANA in the amicus brief were the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF). The industry brief was written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP.

Jaffe said, “This is much more than just a case about tobacco advertising. Censorship can become habit-forming. We have also seen proposals to ban or seriously restrict certain food ads and ads for prescription drug products. It is critically important for the advertising community to stand up for the First Amendment rights of all marketers, whenever they are threatened.”

The Act places unprecedentedly broad restrictions on speech. It mandates the FDA to promulgate a rule that will:

-Ban all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground

– Require all permitted tobacco advertising, including direct mail, to be black text on a white background, except in magazines, newspapers or other periodicals with adult readership of 85 percent or more, or fewer than 2 million readers under the age of 18

– Require all advertisements and labels to identify the tobacco product as a “nicotine delivery device”

– Require all advertisements to contain a government-dictated “brief statement” (in addition to the current Surgeon General’s warning) to serve as a warning about possible dangers associated with the use of tobacco products

– Ban the use of promotional items such as hats or t-shirts containing the name or logo of a tobacco product, and prohibit other promotional techniques such as product giveaways, rebates or refunds

– Require sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience

– Require all advertisers of tobacco products to fund and participate in a national public education campaign designed to discourage the use of tobacco products by minors. The FDA would require the annual fund established for this campaign to total $150 million

– Require compliance with more stringent requirements as enacted by state and local governments

– Authorize the enactment of additional restrictions seven years after implementation of a final rule if the number of minors who use tobacco products has not decreased by 50 percent from 1994 levels

Jaffe said, “While the Act claims to be protecting children from tobacco advertising, its sweeping restrictions would impermissibly and unconstitutionally make it virtually impossible to advertise tobacco, a legal product, to adults.”

The industry brief argues that Congress overlooked a number of less restrictive alternatives that could have achieved the objectives of discouraging smoking and protecting minors without restricting speech. “Congress was faced with a clear choice between regulating conduct and restricting constitutionally-protected speech. Unfortunately, it chose to restrict speech. This choice in adopting the Act’s advertising restrictions flies in the face of the Supreme Court warning that when the government seeks to further an important interest regulating speech must be a last-not first-resort,” Western States, 535 U.S. at 373.

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