September 23, 2011

AAF Supports Free Commercial Speech

The American Advertising Federation has filed an amicus brief in an important First Amendment case before the U.S. District Court in Washington, DC. Joined by the Association of National Advertisers the brief is in support of a lawsuit filed by R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. challenging new Food and Drug Administration regulations requiring graphic warning labels in advertising and on packaging.

While the particular case is about tobacco advertising and packaging, the implications for commercial speech of all products go much further. As stated in the brief:

The important issues in this case are not limited to tobacco products. Rather, they affect a wide range of products and services about which some may believe the government knows “best.” If the government can deputize tobacco companies through their product packaging and advertisements to deliver its message, there is no reason it could not do so for other things – and history shows it will not hesitate to do so.

A hearing on a preliminary injunction to stop the warning was held September 21. A decision is anticipated in early October.

Nutrition Guides Draw Attention of Congress

The Interagency Working Groups so-called voluntary guidelines for foods marketed to children are drawing attention in Congress. Rep. Jo Ann Emerson, R-Mo., chair of the Financial Services and General Government Appropriations subcommittee in the House included legislative language to her spending bill (which includes funding for the Federal Trade Commission) prohibiting the FTC from spending any further revenues on the IWG proposal. On the other side of the Capitol, Sen. Richard Durbin, D-Ill., chair of the corresponding Senate subcommittee did not add legislative language to his version of the bill, but did include language generally supportive of the IWG in the accompanying report.

Rep. Lee Terry, R-Neb., who sits on the Energy and Commerce Committee which oversees the FTC and Rep. Paul Broun, R-Ga., who is a physician, co-authored an opinion piece in the Capitol Hill newspaper Roll Call criticizing the proposal.

FTC Proposes Revisions to Children's Online Privacy Rule

The Federal Trade Commission has released proposed revisions to the Children’s Online Privacy Protection Rule. The revisions appear to change the definitions of a number of terms and practices, including the meanings of personal information, collection of information and parental notice and consent. The FTC will be accepting comments on the proposed revisions until November 28, 2011. AAF anticipates filing comments with the Commission; however, we need the input of our members. Please let us know if the proposed revisions would affect the way you do business, in either a negative or positive way.

DISCUS Expands Self-Regulation to Social Marketing

The Distilled Spirits Council has expanded its advertising and marketing self-regulatory guidelines to include new guides for digital communications and social networking sites. Under the DISCUS Code, beverage alcohol advertising and marketing should be placed in media only where at least 71.6% of the audience is reasonably expected to be of the legal purchase age (21+). Among other requirements the new guides maintain the same age threshold and state that “Digital marketing communications on a site or web page controlled by the brand advertiser that involve direct interaction with a user should require age affirmation by the user prior to full user engagement of that communication to determine that the user is of legal purchase age.”

Missouri Transportation Veto Stands

The Missouri legislature did not attempt an override of Governor Jay Nixon’s (D) veto of the state transportation bill. The bill, supported by the outdoor advertising industry, would have allowed the relocation of certain billboards instead of removal and payment by the state of millions of dollars to sign owners and landowners. The outdoor advertising industry will support inclusion of a similar provision when the issue is likely to be considered during next year’s legislative session.