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Tobacco, Ad Companies To Fight FDA Regulations

By Rajiv Chandrasekaran
The Washington Post

Before the Marlboro Man rides off billboards and Joe Camel disappears from some magazine pages, Food and Drug Administration regulations on tobacco advertising are expected to face a lengthy challenge in the courts mounted by media companies and cigarette manufacturers, legal and industry specialists said Friday.

Several legal experts and lawyers for advertising agencies said the rules, which would allow only black-and-white text advertisements on billboards and in magazines that have a significant juvenile readership, amount to an unconstitutional restraint of speech.

"The government's going to have a real uphill struggle trying to pass constitutional scrutiny with this," said Bruce Sanford, a lawyer who specializes in First Amendment issues with the Washington office of Baker & Hostetler. The rules "may be popular, but that doesn't mean they're legal."

A coalition of publishers and advertising agencies, joined by the tobacco industry, filed suit in federal court against the proposed regulations last year, but a judge had effectively put the case on hold until the rules were finalized. With Friday's decision by President Clinton to formally adopt the FDA regulations, the suit is expected to move forward.

Advertisements, considered so-called "commercial speech," have enjoyed growing First Amendment protection from the courts in recent years. Although commercial speech still is not protected like other forms of expression, the Supreme Court this year, in deciding a Rhode Island liquor advertising case, rejected the idea of special government restrictions on ads for "vices."

At the same time, appellate courts have tended to favor government regulations in cases dealing with the health and safety of children.

"In cases where juveniles are involved, the courts are more likely to find a compelling state or government interest," said Clay Calvert, an assistant professor of communication at Pennsylvania State University. "But you've got two big competing interests here: the health of children and free speech."

FDA officials contend that the regulations still will allow tobacco companies to advertise, albeit without pictures or color, on billboards and in magazines with a 15 percent or greater juvenile readership that are covered by the new rules.

"The companies can still communicate their speech," said William B. Schultz, the FDA's deputy commissioner for policy. "We're not regulating the content of their speech."

But a spokesman for the advertisers coalition said that without photos or graphics, ads are ineffective for an adult audience as well.

"The way you communicate is by selling a theme or a feel for a product, by grabbing a customer's attention" said Washington lawyer John Fithian, who represents the Freedom to Advertise Coalition. "Ads which contain no colors and no pictures amount to no advertisements at all."

Tobacco advertisements in magazines accounted for $317 million, or about 3 percent of total advertising revenue last year, according to the New York-based Magazine Publishers of America. Industry officials said it will be difficult to determine which magazines are read by enough youngsters to fall under the 15 percent rule because readership among juveniles is generally not surveyed.

Tobacco ads generated $150 million for billboard companies last year, about 8 percent to 10 percent of industry revenue, the Outdoor Advertising Association of America said.

The FDA regulations also would ban tobacco billboard advertising within 1,000 feet of any school, doubling the distance of a 500-foot voluntary industry-wide ban near schools, churches and parks.

Billboard companies say the 1,000-foot regulation could amount to a total ban on tobacco billboards in many inner cities. "It's not a fair balance," said Kippy Burns, a spokeswoman for the outdoor advertising association. "In many areas, it would blanket an entire community."

Ultimately, legal experts said challenges to the advertising ban likely will focus extensively on the medical rationale for the restrictions.

"The government will have to really justify these restrictions," Sanford said. "That's where the rubber will hit the road."