Kennedy Bill Could Put Tobacco Advertising Under FDA Control

22 July 2002

Senator Edward M Kennedy (Democrat, Massachusetts) and chairman of the Senate’s Health, Education, Labor and Pensions Committee, is in the vanguard of legislation that would confer oversight of the tobacco industry on the Food and Drug Administration – a plan that will almost certainly encounter a tsunami of opposition on legislative and constitutional grounds.

Nor does Kennedy, a longtime campaigner for greater restrictions on America’s powerful tobacco industry, have time on his side. His bill – if not defeated politically – could run out of time with Congressional elections due before the year end.

The bipartisan bill was introduced by Kennedy and two other senators (Michael DeWine, Republican, Ohio; and Richard Durbin, Democrat, Illinois) last month but will not now receive its first hearing until July 30.

The usual suspects are arraigned in opposition: the tobacco industry (with the notable exception of Philip Morris) and the Magazine Publishers of America, to name but two. Their defense cites the First Amendment: “The US Supreme Court has made clear for the past twenty years or so that commercial speech is protected by the First Amendment,” claims the latter’s evp for government affairs, James Cregan.

“No matter how controversial the product may be – whether it's tobacco or alcoholic beverages – if indeed it is a lawfully sold product or service, truthful and non-deceptive advertising of that product is protected by the First Amendment.”

But to the surprise of many, Philip Morris has distanced itself from the opposition: “We think that the whole industry would benefit from having clear rules established,” said Mark Berlind, associate general council in the tobacco titan’s government affairs unit.

According to certain analysts, the PM view is based on the strength of its brands – believing them to be so popular that they would be less affected than their rivals by advertising restrictions.

Data sourced from: New York Times; additional content by WARC staff