White House cautions Congress against tobacco bill

Tuesday, March 3, 1998

WASHINGTON (AP) — The White House says tobacco legislation is almost certain to face a court challenge unless such a measure is made acceptable to all sides.

Sen. John McCain, chairman of the Senate Commerce Committee, agree.

“I think we would all agree, little will be achieved if we pass legislation that will simply be held up for years in the courts and then struck down,” McCain, R-Ariz., said today during a hearing on proposed advertising and marketing restrictions.

Specifically, a proposal to ban tobacco advertising on the Internet, for example, “would raise significant constitutional concerns,” White House Domestic Policy Adviser Bruce Reed said in a Feb. 27 memo to Senate Commerce Committee Chairman John McCain, R-Ariz.

The memo, which ignores many of McCain's questions about the administration's positions on proposed tobacco legislation, nonetheless provides the clearest guidance yet from the White House on what kind of tobacco policy President Clinton would sign into law.

But anti-smoking activists complained that the White House was bowing to an industry that hasn't earned goodwill from the government.

The White House, McCain and Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, say supporting the industry's requests is a matter of pragmatics.

The tobacco industry has said it will voluntarily restrict its own marketing and advertising if Congress provides it the protection from most lawsuits included in the settlement companies struck with states in June.

Beyond Hatch and McCain, little willingness exists among congressional leaders to grant that protection, especially in an election year. Several alternative bills to be considered by congressional panels this month would delete the lawsuit shields and require the industry to curb its marketing practices in exchange for other incentives.

However, the memo cautions that advertising restrictions not accepted by the industry “would continue to raise substantial constitutional questions” under the First Amendment's free-speech protections.

The White House memo echoes concerns raised in several recent House and Senate committee hearings.

Last month, First Amendment scholars and attorneys told the Senate Judiciary Committee to carefully draft legislation restricting the production, marketing and use of tobacco so it doesn't violate free-speech rights. Last week, tobacco executives told the Senate Commerce Committee they wouldn't curb their advertising if they weren't afforded lawsuit protection.

Phillip Zisook, a First Amendment and defamation attorney in Chicago, said that since Congress is proposing content-based restrictions on advertising of a legal product it has to withstand strict constitutional scrutiny.

Zisook said that any restrictions would have to meet the test the Supreme Court established in Central Hudson v. Public Service Commission, which says the government has several burdens when restricting commercial speech.

“First of all, the legislative purpose would have to be identified and clear,” he said. “The third and fourth prongs of the Central Hudson test require that the legislation materially and directly advance the legislative purpose.

He added that the government must show that alternatives would not adequately advance that purpose without infringing upon commercial speech.

Zisook, who represents the Federation of Advertising Industry Representatives, said the ads on the Internet are “truthful and as a result the government has a heavy burden to sustain before it can censor any advertised message regarding tobacco.”

– First Amendment Center staff contributed to this report.