November 10, 2011

Judge Snuffs Out Warnings

U.S. District Judge Richard Leon has issued a temporary injunction preventing the Food and Drug Administration from requiring tobacco companies to display a rotating series of graphic images and warnings in cigarette advertising and on packaging. The images would have occupied the top 20% of an advertisement, and the top 50% of the front and back panels of the product packaging.

The judge expressed skepticism over the potential effectiveness and informational nature of the warnings, but ultimately ruled them unconstitutional because they were not narrowly tailored and would be unlikely to pass the Central Hudson test for commercial speech restrictions under the First Amendment.

The judge recognized that the issues in this case go far beyond just tobacco. He twice specifically cited the potential for similar restrictions on food and alcoholic beverages:

One can only wonder what the Congress and the FDA might conjure for fast food packages and alcohol containers if, like the Canadian government, they were not compelled to comply with the intricacies of our First Amendment jurisprudence. (footnote, page 20)
And when one considers the logical extension of the Government's defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public's interest in preserving its constitutional protections - and, indeed, the Government's concomitant interest in not violating the constitutional rights of its citizens - are best served by granting injunctive relief at this preliminary stage. (page 28)

AAF filed an amicus brief in the case arguing that the proposed warnings violated First Amendment protections for commercial speech.

Online Protection Expanded

The Digital Advertising Alliance (DAA) has announced an expansion of its self-regulatory principles for online behavioral advertising to include Principles for Multi-Site Data. The Principles establish comprehensive self-regulatory standards governing the collection and use of Multi-Site Data, data collected from a particular computer or device regarding Web viewing over time and across non-affiliated Websites and provides consumer choice for the collection of such data. Specific protections are provided for such sensitive areas as those that concerning children, health or financial information.

AAF is a member of the DAA, which is comprised of the leading marketing and online media trade associations.

AAF Asked for Delay of New Domains

AAF and many of its corporate members and local advertising clubs have signed a letter to Secretary John Bryson of the Department of Commerce asking the Department to help convince the Internet Corporation for Assigned Names and Numbers (ICANN) to postpone a plan to allow for the creation of a virtually unlimited number of new top level domains.

Top level domains are the part of an internet address to the right of the dot (.com, .org, .edu, etc.). AAF and many other s are concerned that ICANN has not adequately addressed many possible negative consequences of the proposal including economic harm, increased possibilities for consumer fraud and Internet crimes, brand dilution and trademark issues and cyber-security issues.

ICANN is currently scheduled to start taking applications for new top level domains in January 2012.

President Promises Veto of Rules Repeal

President Barack Obama has vowed a veto if the Senate approves a resolution to repeal the Federal Communications Commission’s net-neutrality rules. The vote is expected November 9 and the rules are scheduled to go into effect November 20. The House of Representatives has already passed a resolution to repeal the rules.