AAF First Amendment Amicus Brief

December 16, 2009

To: AAF Members
From: Clark Rector, Executive Vice President-Government Affairs
Re: AAF First Amendment Amicus Brief

The American Advertising Federation recently joined with the 4A’s and ANA to file an amicus brief in U.S. District Court in support of a challenge to the recently enacted law giving the U.S. Food and Drug Administration unprecedented – and in our view unconstitutional – authority to restrict tobacco advertising.

No matter how one may feel about tobacco, government restrictions of truthful speech about this legal product clearly violate the First Amendment guarantees for commercial speech.  If the restrictions were upheld, they would set a precedent that threatens the advertising for any other product unpopular with lawmakers.  Direct-to-consumer advertising of pharmaceuticals and food marketing to children are already under fire.

The restrictions in the law include a prohibition on the use of color and images in most tobacco advertisements; a requirement that the top 20% of ad space be used for anti-tobacco warnings; and a ban on outdoor advertising within 1,000 feet of schools and public playgrounds.

The brief explains how the restrictions violate the U.S. Supreme Court’s established commercial speech doctrine which states that any restrictions on truthful advertising must directly and materially serve an important governmental interest without restricting speech more extensively than necessary to serve that interest.  It further requires that if the government has options to achieve its interest without restricting speech, it must exercise those options first.

The brief cites the Court’s decision in Lorillard v. Reilly (2001) which states that “so long as the sale and use of tobacco is lawful for adults, [there is] a protected interest in communication about it [ ] and adult consumers have an interest in receiving that information.”  The decision in Lorillard struck down a number of advertising restrictions virtually identical to some of those currently being challenged.

The brief can be found on the AAF website here.

As always, do not hesitate to contact me if you have any comments or questions.