President Signs Landmark Tobacco Legislation

Yesterday, President Barack Obama signed into law landmark legislation granting the Food and Drug Administration authority over tobacco products, including advertising.  The legislation, sponsored by Senator Edward Kennedy (D-MA) and Congressman Henry Waxman (D-CA) passed both the House and Senate by large bipartisan majorities.  

ANA has detailed in correspondence sent to both the House and Senate the major constitutional problems with the advertising provisions the FDA must issue under the legislation.  These restrictions would severely limit the ability to communicate to adults and allow the states and thousands of localities to impose additional and potentially inconsistent advertising restrictions.  First Amendment experts from opposite ends of the political spectrum - from Judge Robert Bork to Laurence Tribe and the ACLU to the Washington Legal Foundation - have all argued that the provisions are unconstitutional restrictions on truthful, non-deceptive commercial speech.  Additionally, the Supreme Court struck down a number of similar restrictions in its 2001 Lorillard v. Reilly decision. 

These ad restrictions, the most extensive ever passed by the Congress, could set a major precedent for restrictions on many other categories of advertising if unchallenged.  

If you have any questions, you can contact Dan Jaffe in ANA's Washington office at 202-296-2359 or at djaffe@ana.net.