May 29, 2009

May 29, 2009


To: AAF Members
From: Clark Rector, Senior Vice President-Government Affairs
Re: Commercial Speech Threat – Action Needed

The week of June 1, the full Senate is expected to begin consideration of legislation that poses a serious threat to the First Amendment guarantee of freedom of commercial speech. S. 982 would grant the Food and Drug Administration regulatory authority over tobacco products, including advertising.

The bill would take authority over tobacco advertising from the Federal Trade Commission and grant it to the Food and Drug Administration. The AAF believes that advertising authority should remain with the FTC, the agency with the most experience and expertise in the regulation of consumer advertising. It is ironic that members of Congress who would grant the FDA this new authority—and many others—over tobacco have been critical in other instances of the agency’s alleged inaction.

The bill would also direct the secretary of Health and Human Services to publish an interim rule enacting a number of unprecedented advertising restrictions including:

• banning all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground, and
• 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.

Legal scholars at both ends of the political spectrum agree that the advertising restrictions would violate the First Amendment’s guarantee of free speech. In fact, the U.S. Supreme Court has already ruled in Lorillard v. Massachusetts (2002) that a Massachusetts tobacco regulation that was virtually identical to parts of the proposed advertising restrictions was unconstitutional.

Senator Enzi is planning on introducing an amendment to require the Secretary of Health and Human Services to conduct a full, new and open rulemaking to implement the marketing provisions of the act. This would insure that all groups impacted by the rule are heard and that all legal and constitutional issues are fully considered.

It is very important that all members the Senate hear from their constituents that there are serious problems with S. 982. Please contact both of your Senators and ask them to support the Enzi amendment to require the rulemaking.

Senators can be reached through the Internet by going to the Senate Web site at http://www.senate.gov/index.htm. You can search for your Senator by name or state.

We would appreciate it if you would let us know if you have contacted your Senator, and especially if you get a response. If you have any comments or questions, do not hesitate to contact me at (202) 898-0089 or crector@aaf.org.