September 13, 2012


Court Affirms Protections for Commercial Speech

The U.S. Court of Appeals for the D.C. Circuit has ruled that the proposed Food and Drug Administration rule to require large graphic warnings in tobacco advertising and packaging violates First Amendment protections for commercial speech.  The 2-1 ruling prohibits the FDA from mandating that 20% of advertising and 50% of the front and back of packaging be used as a “mini-billboard” to present the government’s anti-smoking message.

The Court noted that the First Amendment does allow – in certain narrow circumstances – the government to require factual and non-controversial information to be displayed.  However, the Court said the proposed warnings are not purely factual because they are “primarily intended to evoke an emotional response, or at most, shock the viewer into retaining the information in the text[.]”  It goes on to hold “many of the images do not convey any warning information at all, much less an accurate statement about cigarettes.”
Getting to the bottom line of what is required under the First Amendment, the majority opinion stated, the “FDA has not provided a shred of evidence—much less the ‘substantial evidence’ required by the APA—showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke.”

This opinion is important not just for tobacco, but for any other potentially disfavored product or service.

AAF joined with our sister association the ANA to file an amicus brief in the case defending the free speech rights for advertising and commercial speakers.

Senators Ask for Soda Study

U.S. Senators Frank Lautenberg, D-N.J., Ron Wyden D-Ore., and Richard Blumenthal D-Conn. have asked Surgeon General Regina Benjamin to “study the impact sugary beverages have on obesity and public health in the United States, and how policies regarding sugary beverages might affect the obesity epidemic.”

The letter does not mention advertising, but experience shows that when lawmakers want to discourage the use of a product, banning, restricting or requiring warnings in advertising are often one method they propose to do so (see previous story).

FTC Provides Guidance for App Developers

The Federal Trade Commission has released a new document Marketing Your Mobile App.  It is designed to help App developers, many of whom have little to no marketing experience, comply with all relevant truth in advertising requirements.  The document also gives advice to developer for providing consumers information of their privacy practices.

AAF Members Meet With Lawmakers

During the August Congressional recess, many AAF members together with other advertising industry representatives met with their local members of Congress.  Representatives of AAF-Dallas and AAF-Fort Worth met with Rep. Kenny Marchant, R-Texas.  Members of the Advertising Federation of Minnesota met with Rep. Erik Paulsen, R-Minn.  Members of AAF-Acadiana met with Rep. Charles Boustany, R-La.  All of these members of Congress sit on the tax writing Ways and Means Committee.  The meetings were an opportunity to educate them about the economic value of advertising not just to the county, but to their congressional districts.

AAF to Host Government Conference and Day on the Hill

April 17, 2013 is the date of the American Advertising Federation Government Affairs Conference and Day on the Hill.  The conference will feature a first class program of influential speakers updating attendees on advertising tax deductibility, privacy, content restrictions and other important issues fronting the advertising industry.

The program will also include an afternoon on the Hill with advertising professionals visiting lawmakers to educate them about the importance of advertising to the economy and their constituents.  Few things are noticed more in the halls of Congress than the presence of constituents who care enough to travel to Washington, DC to talk about the issues than matter to him or her.

More information will be forthcoming soon.  In the meantime make your plans to be in Washington, DC on Wednesday, April 17 for this exciting event.

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The AAF protects and promotes advertising at all levels of government through grassroots activities. Our nation-wide network monitors advertising-related legislation on local, state and federal levels. We put our members face-to-face with influential lawmakers while encouraging self-regulation as a preemptor to government intervention, when appropriate of course. To learn more about our advocacy efforts, click here.