June 15, 2009

June 15, 2009

To: AAF Members
From: Clark Rector, Executive Vice President-Government Affairs
Re: Tobacco Advertising Legislation

As you probably know by now, last week was a sad time for anyone who cherishes the First Amendment and its protections for commercial speech.

The U.S. Senate and House of Representatives have passed legislation giving the FDA authority to regulate tobacco products and the advertising of those products. The measure is being sent to President Obama and he has said he intends to sign it into law when it reaches his desk.

While AAF took no position on much of the legislation, we did strenuously object to the provisions regarding advertising. These include:

  • Banning outdoor tobacco advertising within 1,000 feet of schools and playgrounds,

  • Requiring all tobacco advertising to be black text on a white background, except in magazines, newspapers or periodicals with adult readership of 85 percent or more or fewer than two million readers under the age of 18.

The issue is not just the advertising of tobacco, but the advertising of any product that a member of Congress deems is not worthy of First Amendment protection. The list of potential targets is virtually endless – alcoholic beverages, lotteries and casinos, “unhealthy” foods and beverages, automobiles that do not meet proscribed emission of mileage standards, “unsafe” toys, and so on.

A First Amendment that only protects non-controversial speech, be it commercial, political or otherwise, is toothless protection for all speech.

We anticipate that the advertising provisions will be challenged in the courts.

Please do not hesitate to contact me if you have any comments or questions.