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ANA Files Brief In Key First Amendment Case

ANA Files Brief In Key First Amendment Case

WASHINGTON - The Association of National Advertisers (ANA) has joined with two other industry groups in filing a "friend of the court" brief with the U.S. Court of Appeals for the Sixth Circuit in a key First Amendment case challenging the advertising restrictions in the Family Smoking Prevention and Tobacco Control Act of 2009.

The brief argues that the U.S. District Court for the Western District of Kentucky seriously erred in upholding most of the Act's marketing restrictions while invalidating a ban on color and graphics in ads. To be consistent, and to apply the law correctly, the District Court should have struck down all of the marketing restrictions.

Dan Jaffe, ANA's Executive Vice President, Government Relations stated: "The District Court went against thirty years of commercial speech precedent in upholding a majority of the most burdensome restrictions ever passed by Congress pertaining to the truthful advertising of a legal product. The lower court erroneously held that the restrictions on truthful, non-deceptive speech about a legal product to an overwhelming preponderance of adults could be justified because underage youth could still see this material. This clearly flies in the face of the U.S. Supreme Court's holding in its 2001 Lorillard decision. We are hopeful that the Court of Appeals will consider the Supreme Court's clear guidance on the protection afforded commercial speech by the First Amendment and overturn this decision."

The restrictions the court upheld included:

  • Banning all outdoor advertising for tobacco products within 1,000 feet of any elementary or secondary school or playground;
  • Requiring all advertisements to contain a government-dictated statement (in addition to the current Surgeon General's warning) to serve as a warning about possible dangers associated with the use of tobacco products;
  • Banning the use of promotional items such as hats or T-shirts containing the name or logo of a tobacco product, and prohibit other promotional techniques such as product giveaways, rebates or refunds;
  • Requiring sponsorship of athletic, musical, social or other cultural events in corporate name even in venues restricted to adults;
  • Requiring compliance with more stringent requirements as enacted by state and local governments; and
  • Authorizing the enactment of additional restrictions seven years after implementation of a final rule if the number of minors who use tobacco products has not decreased by 50 percent from 1994 levels.

Jaffe stated: "The District Court also wrongly concluded that non-speech restrictions had been adequately tried and failed. The Supreme Court has held that government entities only should regulate speech as a ‘last resort,' and yet there was clear evidence that other non-speech restricting means of protecting minors from tobacco products are effective and could be more effective if fully implemented." Jaffe added that: "In this case, the government failed to demonstrate either that the Act's broad marketing restrictions actually will reduce youth smoking or that non-speech related means would fail to do so."

If the Court of Appeals upheld the lower court, it would set a very dangerous precedent. Jaffe stated: "The Supreme Court has made it clear that there is no ‘vice exception' to the First Amendment, so precedents in this case would have potential wide-ranging impacts on many other advertisers."

The brief was filed in Discount Tobacco City & Lottery, Inc et al v. United States of America, Nos. 10-5234 & 10-5235. In that case, six major tobacco companies have challenged the constitutionality of the Act passed last year by Congress. Joining ANA in the amicus brief were the American Association of Advertising Agencies (4A's) and the American Advertising Federation (AAF). The industry brief was written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP. 

A copy of the brief is available here. 

About the ANA

The mission of the ANA (Association of National Advertisers) is to drive growth for marketing professionals, brands and businesses, the industry, and humanity. The ANA serves the marketing needs of 20,000 brands by leveraging the 12-point ANA Growth Agenda, which has been endorsed by the Global CMO Growth Council. The ANA’s membership consists of U.S. and international companies, including client-side marketers, nonprofits, fundraisers, and marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). The ANA creates Marketing Growth Champions by serving, educating, and advocating for more than 50,000 industry members that collectively invest more than $400 billion in marketing and advertising annually.