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    FDA Advertising Restrictions on Hold

    For now, manufacturers, wholesalers and retailers can still advertise tobacco products through color and outdoor advertisements.

    By Thomas A. Briant, Natioal Association of Tobacco Outlets

    When it comes to implementing the U.S. Food and Drug Administration’s color advertising restrictions and outdoor advertising ban on cigarettes and smokeless tobacco, the status quo is the order of the day. This means that for the time being, manufacturers, wholesalers and retailers can continue to advertise cigarettes, RYO tobacco and smokeless tobacco products through the use of color advertisements and outdoor advertisements.

    Under the Family Smoking Prevention and Tobacco Control Act enacted last summer, the FDA was required to republish its 1996 rule allowing only black text on a white background in advertisements for cigarettes and smokeless tobacco products. This ban on color advertising is also known as “tombstone” advertising. However, last fall R.J. Reynolds Tobacco Co., Conwood Co. (now known as American Snuff Co.), Commonwealth Brands, Lorillard, National Tobacco Co., and Discount Tobacco City & Lottery, a tobacco retailer, filed a lawsuit against the FDA which, in part, sought to overturn this color advertising ban.

    On Jan. 5, 2010, a Kentucky Federal District Court judge issued a decision striking down the color advertising ban and permanently enjoining the FDA from enforcing the ban on color advertising.  In his ruling, the judge held that the ban on color advertising was unconstitutional because the First Amendment of the U.S. Constitution protects free speech including commercial speech such as advertising of legal tobacco products. 

    On March 8, 2010, the FDA filed an appeal of the federal district court’s decision striking down the color advertising ban. Shortly after it filed its appeal, the FDA also issued a “Guidance” document which states that the agency will not take any enforcement action regarding color tobacco advertisements against any retailer, wholesaler or manufacturer while the FDA’s appeal of the Kentucky court decision is pending.  In short, manufacturers, wholesalers and retailers are allowed to print, publish and post color cigarette and smokeless tobacco advertisements until the Federal Circuit Court of Appeals hears the appeal and issues a ruling.

    Outdoor Advertising Status
    Just like the issue of color tobacco advertising, a court decision has also placed the FDA’s ban on outdoor cigarette and smokeless tobacco advertising on hold.  In 2001, the U.S. Supreme Court ruled in Lorillard Tobacco Co. v. Reilly that a Massachusetts regulation banning advertising of cigarettes, cigars, little cigars and smokeless tobacco products within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school was unconstitutional.

    The FDA’s ban on the outdoor advertising of cigarettes and smokeless tobacco products is contained in the agency’s 1996 republished rule and reads as follows:

    “No outdoor advertising for cigarettes or smokeless tobacco, including billboards, posters, or placards, may be placed within 1,000 feet of the perimeter of any public playground or ... playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds, or basketball courts), elementary school, or secondary school.”

    With the FDA’s rule being so similar to the Massachusetts outdoor advertising ban that was struck down by the U.S. Supreme Court, the likelihood of the FDA’s outdoor advertising ban being overturned is quite high. This likelihood was acknowledged by the FDA in a public “Request for Comment” in which the FDA is seeking comments on how best to modify its outdoor advertising ban in light of the Lorillard decision by the U.S. Supreme Court.

    In response to the request for comments, the National Association of Tobacco Outlets (NATO) has submitted a letter stating that the FDA’s republished rule banning outdoor cigarette and smokeless tobacco advertising is unconstitutional under the Lorillard decision.  Since the rule is so broad and is a virtual prohibition of outdoor advertising of cigarettes and smokeless tobacco, the rule does not offer any protection of the constitutional right to advertise legal tobacco products.

    The FDA is accepting comments on the outdoor advertising rule until July 17, 2010 after which time the agency will proceed to either enforce the rule as written with the industry likely to bring litigation to enjoin such enforcement or modify the rule to lessen the impact of the ban in an attempt to avoid a legal challenge by the industry.  Either way, the issue of outdoor advertising of cigarettes and smokeless tobacco products will not be resolved in the near future as the comment period and potential litigation play out.

    Thomas Briant is executive director of NATO and can be reached at (866) 869-8888 or at [email protected].

    Editor's Note: The opinions expressed in this article are the author's, and do not necessarily reflect the views of Convenience Store News.

    By Thomas A. Briant, Natioal Association of Tobacco Outlets
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