By Sullum, Jacob
Reason , Vol. 29, No. 5
R.J. Reynolds Tobacco Co.--00085971
Tobacco Industry--Laws, Regulations and Rules
Philip Morris Inc.--Laws, regulations and rules
R.J. Reynolds Tobacco Co.--Laws, regulations and rules
United States. Food and Drug Administration--Laws, regulations and rules
"You're defending the tobacco companies!" an apoplectic cigarette-model-turned-anti-smoking-activist screamed at me. "They're merchants of death.... How dare you defend them!" On occasions like these, I used to insist that I was defending the tobacco companies because important principles were at stake: freedom of speech, the rule of law, property rights, individual responsibility, the liberty to trade longevity for pleasure. But the tobacco companies freed me from the burden of defending them when they agreed to the nationwide liability settlement proposed last summer, thereby renouncing all of these principles. Now I am in the unaccustomed position of rooting for the industry's most militant opponents, hoping the deal will fall apart.
Philip Morris used to be very keen on the First Amendment, celebrating our civil liberties in TV ads, underwriting a National Archives exhibit marking the Bill of Rights bicentennial, and sponsoring a contest for the best essay on the right to advertise. The first sign that the company's enthusiasm might be waning came after the Food and Drug Administration proposed severe restrictions on tobacco advertising and promotion in August 1995. Among other things, the FDA wanted to ban premiums such as hats, tote bags, and lighters; brand-name sponsorship of sporting and cultural events; outdoor advertising within 1,000 feet of a playground or school; and the use of pictures in outdoor signs, indoor signs in locations accessible to minors, or print ads in publications read by minors. Philip Morris responded by suggesting legislation imposing a less sweeping set of restrictions on the industry. Thus the market leader, with the most to lose from a vigorous contest for smokers' business, was asking Congress to hobble its competitors.
Now Philip Morris and the country's number-two cigarette maker, R.J. Reynolds, negotiating on behalf of the industry, have offered to accept the FDA's restrictions and go even further, forsaking outdoor signs, Internet advertising, the use of cartoon characters or human figures, and product placement in movies, TV shows, or video games. Their readiness to accept such limits, which were reportedly part of the industry's opening offer, should give pause to anyone who thinks the Marlboro Man, Merit Awards, and the Kool Jazz Festival play a vital role in keeping Americans smoking. Nevertheless, tobacco's opponents do complain, loudly and incessantly, about such institutions, and they are not likely to get rid of them without the industry's cooperation. U.S. District Judge William L. Osteen, who upheld the FDA's jurisdiction over cigarettes in April, also ruled that it does not have the authority to regulate tobacco advertising and promotion. Even if it did, a Supreme Court that in recent years has subjected restrictions on commercial speech to increasingly close scrutiny is not likely to uphold a program of censorship as ambitious as this.
The advantage of the settlement proposal, from the perspective of people whose nightmares revolve around Joe Camel and Virginia Slims models, is that the tobacco companies are doing to themselves what they have long insisted the government should never be allowed to do. If legislation restricting tobacco advertising and promotion is overturned, the companies will still be bound by a consent order imposing the same restraints. Philip Morris et al. used to wave the First Amendment. Now they are waiving it.
Even leaving aside the twin threats of litigation and regulation that led to this deal, the coercive implications of the speech limits are not hard to see. What about people who are not party to the agreement? Suppose I start a tobacco company, and I want to advertise on a big billboard in Times Square. Or suppose a foreign tobacco company wants to advertise its brand to American consumers on the Internet. In a country where the established cigarette makers have agreed to forgo such indecent speech, would exceptions be tolerated? …