Tobacco Advertising and the First Amendment

By Hanson, Joe | Folio: the Magazine for Magazine Management, September 1, 1990 | Go to article overview

Tobacco Advertising and the First Amendment


Hanson, Joe, Folio: the Magazine for Magazine Management


Tobacco advertising and the First Amendment Through the years I've used this column as a forum to support freedom of the press. Some of my prior comments have focused on the problems between retailers and such titles as Playboy and Penthouse, or the U.S. Government's attempts to suppress Screw. I'm very much less comfortable with a current matter relating to the First Amendment: tobacco advertising.

The Freedom to Advertise Coalition (FAC)-which includes the Magazine Publishers of America as well as advertising and media associations-is testifying in Congress against a comprehensive anti-smoking bill that includes sharp restrictions on tobacco advertising. This bill, in effect, permits only "tombstone" ads on tobacco products: Warning labels would have to occupy at least 20 percent of the ad, and use of art or color would be prohibited. The bill also permits state and local governments to legislate and control tobacco advertising within their jurisdictions. On another front, there is a bill that would, for all intents and purposes, ban tobacco ads by eliminating the current tax deduction.

The FAC argues that tobacco is a legal product, the advertising of which is fully protected by U.S. Supreme Court decisions on commercial free speech. However, this position is clouded by some disturbing statistics. In a recent briefing to magazine executives, Dr. Louis Sullivan, secretary of Health and Human Services, noted that roughly 1,000 people die each day from tobacco-related illnesses. To place this in its proper perspective, Dr. Sullivan referred to the extensive investigations that take place following a plane crash that kills 100 people. Tobacco-related deaths, he said, represent the equivalent of 10 such plane crashes every day.

All of us know that freedom of speech has limitations. Beyond the obvious example about crying fire" in a crowded theater, there are some more subtle distinctions. Billboard advertising is restricted on many highways throughout the United States. Pharmaceutical companies face stringent restrictions on where and how they may advertise. And tobacco advertising has been banned from broadcast for many years.

Yes, tobacco is a legal product. Yes, I understand the logic of saying that if Congress is concerned about the effects of tobacco, it should outlaw the product rather than restrict advertising. But we all know what happened when

Congress tried to do that with liquor. I also am concerned that Congress has for years acted in a hypocritical and cowardly manner with regard to tobacco, providing subsidies for U.S. tobacco growers even today.

Although I recognize the impact that this proposed legislation would have on the ad revenue of many important magazines, I still favor legislation that provides severe restrictions on tobacco advertising. …

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