March 2, 2009

To: AAF Members
From: Clark Rector Jr., Senior Vice President – Government Affairs
Robert Kohlmeyer, Manager – Government Affairs
Re: Family Smoking Prevention and Tobacco Control Act

On Wednesday, the U.S. House of Representatives Energy and Commerce Committee is scheduled to consider and vote on the Family Smoking Prevention and Tobacco Control Act. There are some portions of the bill that would negatively and unfairly affect advertising, which the AAF strongly opposes. These provisions could very easily be seen next in attacks on other forms of advertising, including alcohol, lotteries, food and even pharmaceuticals.

Introduced by Committee Chairman Henry Waxman, D-Calif., the bill would remove 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. We find it ironic that members of Congress, who are often critical of the FDA for alleged inaction, would want to grant the agency sweeping new authority.

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:

  • requiring all tobacco advertising to be black text on a white background, except in magazines, newspapers or other periodicals with adult readership of 85 percent or more, or fewer than two million readers under the age of 18;
  • mandating a government-dictated "brief statement" (in addition to the current Surgeon General's warning) in all advertisements to serve as a warning about possible dangers associated with the use of tobacco products;
  • banning the use of promotional items containing the name or logo of a tobacco product, and prohibiting other promotional techniques such as product giveaways, rebates or refunds;
  • restricting sponsorship of athletic, musical, social or other cultural events in corporate name only regardless of the age of the audience; and
  • banning all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground.

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.

An amendment to the bill proposed by Rep. Steve Buyer, R-Ind., would remove all of Waxman's advertising restrictions and commission a panel tasked with making recommendations to the FDA on ways to regulate advertising within legal boundaries of the Constitution.

Please contact your representative and ask him or her to oppose the bill and support the Buyer amendment, if it comes to a vote.

Members of Congress can be reached through the Internet by going to the House Web site at http://www.house.gov. You can search for your member by name or ZIP code. The full membership of the House Energy and Commerce Committee is available at the bottom of this message.

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

House Energy and Commerce Committee, 111th Congress:
Chairman Henry Waxman, D-Calif.
Ranking Member Joe Barton, R-Texas
Rep. John Dingell, D-Mich.
Ralph Hall, R-Texas
Rep. Ed Markey, D-Mass.
Rep. Fred Upton, R-Mich.
Rep. Rick Boucher, D-Va.
Rep. Cliff Stearns, R-Fla.
Rep. Frank Pallone Jr., D-N.J.
Rep. Nathan Deal, R-Ga.
Rep. Bart Gordon, D-Tenn.
Rep. Ed Whitfield, R-Ky.
Rep. Bobby Rush, D-Ill.
Rep. John Shimkus, R-Ill.
Rep. Anna Eshoo, D-Calif.
Rep. Roy Blunt, R-Mo.
Rep. Bart Stupak, D-Mich.
Rep. Steve Buyer, R-Ind.
Rep. Eliot Engel, D-N.Y.
Rep. George Radanovich, R-Calif.
Rep. Gene Green, D-Texas
Rep. Joseph R. Pitts, R-Pa.
Rep. Diana DeGette, D-Colo.
Rep. Mary Bono Mack, R-Calif.
Rep. Lois Capps, D-Calif.
Rep. Greg Walden, R-Ore.
Rep. Michael F. Doyle, D-Pa.
Rep. Lee Terry, R-Neb.
Rep. Jane Harman, D-Calif.
Rep. Mike J. Rogers, R-Mich.
Rep. Jan Schakowsky, D-Ill.
Rep. Sue Myrick, R-N.C.
Rep. Charlie Gonzalez, D-Texas
Rep. John Sullivan, R-Okla.
Rep. Jay Inslee, D-Wash.
Rep. Tim Murphy, R-Pa.
Rep. Tammy Baldwin, D-Wis.
Rep. Michael C. Burgess, R-Texas
Rep. Mike Ross, D-Ark.
Rep. Marsha Blackburn, R-Tenn.
Rep. Anthony D. Weiner, D-N.Y.
Rep. Phil Gingrey, R-Ga.
Rep. Jim Matheson, D-Utah
Rep. Steve Scalise, R-La.
Rep. G. K. Butterfield, D-N.C.
Rep. Charlie Melancon, D-La.
Rep. John Barrow, D-Ga.
Rep. Baron Hill, D-Ind.
Rep. Doris Matsui, D-Calif.
Rep. Donna Christensen, D-Virgin Islands
Rep. Kathy Castor, D-Fla.
Rep. John Sarbanes, D-Md.
Rep. Christopher Murphy, D-Conn.
Rep. Zachary Space, D-Ohio
Rep. Jerry McNerney, D-Calif.
Rep. Betty Sutton, D-Ohio
Rep. Bruce Braley, D-Iowa
Rep. Peter Welch, D-Vt.