Experts tell Senate to tread lightly with tobacco bills

Thursday, February 12, 1998

Experts on the First Amendment have told a Senate committee to carefully draft legislation restricting the production, marketing and use of tobacco so it doesn’t violate free-speech rights.

Floyd Abrams, a New York-based First Amendment lawyer, warned that any measure limiting tobacco advertising may not survive a court challenge. Such legislation, Abrams said, “is a path fraught with First Amendment land mines.”

Abrams was among four experts who testified before the Senate Judiciary Committee hearing Feb. 10 on “Cigarette Advertising and the First Amendment.” Specifically, they spoke against the U.S. attorney general’s proposed tobacco settlement.

The experts said legislation needs to follow Supreme Court rulings that require restrictions on advertising of any legal product to be “narrowly tailored” and “not more extensive than is necessary” to advance the government’s interest.

The hearing came as several tobacco bills circulate through the House and Senate. One of the most prominent is a bill sponsored by Sen. Kent Conrad, D-N.D., which imposes a $1.50 per-pack tax on cigarettes and strips litigation protection for the industry.

Vice President Al Gore on Feb. 11 announced that President Clinton strongly endorses Conrad’s bill, which requires the tax hike within three years. Clinton had asked for legislation boosting the tax over 10 years.

The Senate, in the meantime, is considering two bills, one in the Judiciary Committee and one in the Commerce Committee. Both focus on the marketing of tobacco.

In testimony before the Judiciary Committee, experts praised the tobacco bill sponsored by committee chairman Sen. Orrin Hatch, R-Utah, because it called for joint agreements between the government and tobacco companies. They said the other bill, sponsored by Sen. John McCain, R-Ariz., raises serious constitutional questions because the government imposes the advertising restrictions.

“Congressional enactment of the restrictions would mean government action rather than private action and would run afoul of the First Amendment,” said David Versfelt, general counsel for the American Association of Advertising Agencies. “Congressional imposition of content- and format-based restrictions would establish precedents that go far beyond the subject of tobacco advertising.”

Experts told the committee that the Supreme Court in Central Hudson v. Public Service Commission ruled that the government has several burdens when restricting commercial speech. The ruling said the restrictions must “directly advance” government interests and be “narrowly tailored” and “not more extensive than is necessary.”

While some said they supported halting advertising directed at youth, the panel said the restrictions proposed by the attorney general’s office are over-reaching, effectively ending all tobacco ads.

The settlement would ban all outdoor advertising, including storefront windows; brand-name sponsorships; human images and cartoon characters in advertisements; tobacco brand names on non-tobacco merchandise; and the use of all new advertising media.

Versfelt said a constitutional lawsuit will follow any bill that mandates broad tobacco advertising restrictions.

It will tie up “the legislation for years and likely resulting in a decision that will undo much that Congress seeks to accomplish,” he said. “This result will be bad for kids, bad for Congress and bad for free speech.”