Big Tobacco Strikes Back

It didn’t take long for tobacco companies to try to evade tough new restrictions on their ability to market to young people. Less than three months after a landmark federal law granted the Food and Drug Administration power to regulate tobacco products, several of the industry’s biggest companies filed suit in tobacco-friendly Kentucky. They contend that the law’s marketing provisions infringe their commercial free-speech rights.
For the sake of the public’s health, we hope this suit is the last gasp of an industry that has a long, sorry history of pretending to market only to adults while surreptitiously targeting young people.
The industry is not trying to upend the entire law or the government’s right to regulate cigarette contents. Rather, it seeks to block restrictions that would greatly limit how and where it can advertise.
The law, for example, bans the use of color or graphic images in advertisements placed in magazines that reach a significant number of people under the age of 18 even though the primary audience might be adults. Ads in those magazines would have to consist of black text on a white background. The lawsuit contends that People magazine, Sports Illustrated and ESPN the Magazine, all read predominantly by adults, would be limited to black-and-white tobacco ads.
Under another provision, cigarette packages would have to carry much larger warnings than the current labels and would have to use color graphics to depict the health consequences of smoking.
The law also prohibits advertising that products carry a lower risk than traditional cigarettes without F.D.A. approval, a provision aimed at ensuring that such claims are scientifically valid not only for individual smokers but also for the population as a whole, including nonsmokers who might be enticed to smoke if they thought a cigarette was low-risk.
The industry contends that these and other restrictions limit its ability to convey “truthful information” about a lawful product to adult consumers, not just to young people. Antismoking advocates retort that the companies can convey their information in black and white without using colorful images that have a strong emotional resonance with young people.
To uphold the law, the courts would have to decide that all of these provisions are “narrowly tailored” to the goal of reducing youth smoking, one of the tests of constitutionality. In 2001 the Supreme Court overturned rules in Massachusetts prohibiting outdoor advertising of tobacco products within 1,000 feet of schools and playgrounds because, while aimed at protecting children, the restrictions interfered unduly with messages aimed at adults.
The new law revises provisions on outdoor advertising to meet the objections raised in that case. They would not prohibit ads in retail store windows near schools and playgrounds, for example, so that adult passers-by would know tobacco products were on sale inside.
And just in case more changes are thought necessary, the law instructs the F.D.A. to modify its rules before issuing them to comply with the Massachusetts decision and other governing First Amendment cases.
On public health grounds, the tobacco industry does not deserve much latitude to promote its deadly products with colorful images, as opposed to black-and-white text. In a 2006 opinion based on company documents, Federal District Judge Gladys Kessler found that tobacco companies had marketed to young people “while consistently, publicly, and falsely, denying they do so.”
Now, the courts must decide how much this rogue industry may be restrained. The health of millions of impressionable young people rides on the outcome.