August 1, 2008

Jeff Perlman, Executive Vice President – Government Affairs
Clark Rector Jr., Senior Vice President – State Government Affairs
Robert Kohlmeyer, Manager – Government Affairs

House Approves Tobacco Advertising Bill

By a 326-102 vote, the House has approved H.R. 1108, the Family Smoking Prevention and Tobacco Control Act. The bill, introduced by Rep. Henry Waxman, D-Calif., would grant the Food and Drug Administration authority over tobacco advertising, rather than the Federal Trade Commission, and would direct the secretary of Health and Human Services to publish an interim rule enacting several unprecedented advertising restrictions, resulting in a de facto ban on most tobacco advertising. Specifically, the bill would and require all tobacco ads to be black text on a white background, except in certain print media with an adult audience, and would ban all outdoor tobacco advertising within any elementary or secondary school or playground.

The AAF and other industry associations have worked to oppose the bill, arguing that it violates commercial free speech protections guaranteed by the First Amendment. Additionally, we argued that the proper agency to regulate tobacco advertising is the FTC, not the FDA, because the commission already has broad authority to block any false, deceptive or unfair advertisements and it has long demonstrated its willingness to use this authority to regulate tobacco ads. A copy of the letter is available here. In 2002, the Supreme Court ruled that a similar tobacco advertising restriction proposal was unconstitutional. The Senate is unlikely to consider its companion bill, S. 625, introduced by Sen. Ted Kennedy, D-Mass., before summer recess.
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FTC Reports on Food Marketing to Children

The Federal Trade Commission released the results of a children's food marketing study, finding that the food and beverage industries have made significant self-regulation progress in the past three years. The FTC calculated that 44 major food and beverage companies spent $1.6 billion to promote products to American children under 18 in 2006 using integrated campaigns combining traditional media with packaging, point-of-purchase, sweepstakes and the Internet. The Institutes of Medicine had previously estimated that food companies spend $10 billion annually on advertising to children. The FTC has again lauded industry self-regulation; both the Children's Advertising Review Unit and the Children's Food and Beverage Advertising Initiative were cited as positive efforts.
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Children's Food Advertising Initiative Working, According to Study

The Council of Better Business Bureaus has released its own report on its Children's Food & Beverage Advertising Initiative, announcing overwhelming compliance with companies' pledge obligations. Their review, based on advertising disseminated July–December 2007, found that the companies' involvement in the initiative has resulted in a substantial shift toward the promotion of better-for-you foods. Moreover, most of the companies who pledged a timetable for transitioning its advertising bested their schedule goals. A copy of the report is available here.
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CPSC Bill Sent to President

The House and Senate have approved a bill designed to reform the Consumer Products Safety Commission and rejected a proposal to require onerous cautionary statements in many advertisements for children's products. The original Senate bill called for any advertisement for a toy, game, balloon, small ball or marble that requires a cautionary statement to include the statement in or immediately adjacent to the ad. Instead, the House and Senate approved the House version, which would require a cautionary statement in advertisements only when the ad provides a direct means to purchase the toy—such as Internet or catalog advertising. The AAF and other industry groups argued that the proposed commercial speech requirements would likely violate the First Amendment guarantees of commercial free speech and that warning language on packaging is appropriate and sufficient. President Bush has indicated that he will sign the bill into law.
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Government Report will not be publshed while Congress is on recess in August. The next issue will be published after Labor Day.

AAF Government Report is available to all members of the AAF. If you are interested in receiving an e-mailed copy, please e-mail