Advertising: Competing Views on Tobacco Ruling
A ruling by the Supreme Court that overturned efforts by Massachusetts to restrict tobacco advertising is being hailed by the trade associations that represent agencies and major marketers, which have long pressed to have commercial speech more fully prot
Others, however, are wondering whether the implications of the decision, made on Thursday, are as far- reaching as they are being portrayed.
Among advocates of giving commercial speech complete First Amendment protection, "it's fair to say this is not the broad, sweeping decision people are waiting for," said Jeff Edelstein, a partner who specializes in advertising law at Hall, Dickler, Kent, Goldstein & Wood, a law firm in New York.
"The decision will make it more difficult for states and localities to enact regulations to curtail advertising by the tobacco companies," he added, "but the court is providing First Amendment protection for commercial speech at a lesser level than noncommercial speech."
The ruling affects regulations in Massachusetts that are aimed at sharply curtailing the advertising of cigarettes, cigars and smokeless tobacco to discourage children from using those products. For instance, the regulations, which never took effect, sought to ban billboards and signs within 1,000 feet of schools or parks and to require signs in stores to be at least five feet above the floor so they would not be easily noticed by children.
The regulations, which were challenged by the tobacco industry, represented an effort "to `childproof' the flow of information in our society," said Daniel L. Jaffe, executive vice president at the advertiser trade organization, the Association of National Advertisers, based in Washington.
"Children deserve to be protected from inappropriate or harmful material," he added, "but the government may not use the guise of protecting children to impose sweeping restrictions on information intended for adults."
The decision "sends a very clear signal to government officials at all levels that broad advertising censorship will not be tolerated," Mr. Jaffe said. "At a time when advertising is under attack in so many arenas, this decision is very welcome."
In February, the advertiser association filed a supporting brief with the Supreme Court, urging that the Massachusetts regulations be overturned.
The agency organization, the American Association of Advertising Agencies, filed a similar brief with the court in the same month.
The ruling was "enormously reassuring" because "First Amendment protection for advertising is critical to us," said Dick O'Brien, executive vice president for government relations at the agency association, who is also the head of its Washington office.
"It bodes well for advertising," he added, "and our industry."
The decision caused some concern because it came in a case involving tobacco advertising.
While the trade organizations remain stalwart in supporting the rights of tobacco marketers to sell legal products to adults, many members of the agency association have become increasingly outspoken in urging that the health implications of smoking be considered in addition to the First Amendment issues.
"There are those who feel it's important to promote the First Amendment rights regardless of the product," Mr. Edelstein said, "and others who are concerned about the health problems and feel that should enter into this."
All nine Supreme Court justices agreed that the use of tobacco products by those under legal age constitutes a serious public health problem that government can properly address.
"But even with the harmful health aspects of smoking, the court recognizes the companies have the right to advertise, and adults have the right to get that information," said Jeff Greenbaum, a partner who specializes in advertising law at Frankfurt, Garbus, Kurnit, Klein & Selz in New York.
Mr. Greenbaum continued: "Even with the difficult context, the court said, `We're going to look to see if government is doing more than it needs to do' " in restricting commercial speech.
"It's a very, very positive decision for the advertising community because it holds the states to proving that they're doing what they need to and not more," he said.
Mr. O'Brien of the agency association agreed.
"Even in this most controversial of cases and categories, at the end of the day, the First Amendment trumps everything," Mr. O'Brien said. "It's good to have that."
Not surprisingly, the nation's largest tobacco marketer, the Philip Morris U.S.A. division of the Philip Morris Companies, welcomed the Supreme Court's decision.
The company's opposition to the Massachusetts regulations "had nothing to do with youth smoking and everything to do with our ability to communicate truthful information to adult smokers" like "cigarette price, brand availability and average tar and nicotine yields," William S. Ohlemeyer, vice president and associate general counsel at Philip Morris U.S.A. in New York, said in a statement.
The American Cancer Society in Washington disputed that point of view, along with the ruling.
"Placing cigarette advertisements near schools and playgrounds is no accident," the organization, which filed a brief supporting the Massachusetts regulations, said in a statement. "To the tobacco industry, today's kid is tomorrow's customer."