Government Alert: Major Commercial Speech Case

To: All AAF Members
From: Clark Rector, Executive Vice President-Government Affairs
Re: Major Commercial Speech Case

As you know, earlier this year Congress passed, and President Obama signed into law, a measure greatly restricting commercial speech – a measure which in our view is unconstitutional.

The restrictions are part of a broader law giving the Food and Drug Administration jurisdiction over tobacco, including tobacco advertising. Specifically it directs the Secretary of Health and Human Services to publish a rule banning all outdoor advertising for tobacco within 1,000 feet of any elementary or secondary school or playground and require all tobacco advertising be limited to black text on a white background except in magazines, newspapers or periodicals with readership of at least 85% adults.

The law is being challenged in court. I am pleased to let you know that the American Advertising Federation has been joined by the ANA and 4A’s on an amicus brief supporting the portions of the suit challenging the advertising provisions of the law. We believe the restrictions clearly violate the First Amendment and are unconstitutional. Since many previous courts have reached the same conclusion, we are optimistic that the challenge will prevail.

This case has far reaching implications beyond tobacco advertising. Already this year members of Congress have introduced, or stated their intention to introduce, legislation targeting pharmaceutical and certain food advertising. Left unchallenged, the tobacco advertising restrictions would be a precedent and embolden those who would target the advertising of other legal, but disfavored by some, products.

The amicus brief is due by the end of November. We will to make a copy available to members when it is filed.

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