Tobacco Documents Online

/' 000o Legal Backgrounder ~ kV ~ h1 S~ HI Ii N C; T O~N LEGA ~L FOUN IDATIUN 1705 N STREET, NiV4/: . LC/ASHINGTON, D.C. 20036 • (202) 857-0240i June 12, 1987 THE MOVEMENT TO BAN TOBACCO ADS: OPENING THE DOOR TO CENSORSHIP? by Richard E. Wiley In 1970, when I was serving as General Counsel of the FCC, I encountered a regulatory problem which, sad to say, is directly relevant to a serious challenge facing the advertising community today. As is well known, the Commission's Fairness Doctrine req,uires broadcasters to cover controversial issues of public importance and, in d'oing so, to provide an opportunity for contrasting views somewhere in their overall programming. Prior to my joining the Commission, the FCC had decided~ (in a considerable departure from its established Fairness Doctrine procedures) to require counter-advertisements to balance cigarette ads (which implicitly argued one side of the public health issue involved). In doing so, the agency stated that cigarettes presented a unique health hazard and, thus, were the only product to which the ad/counter-ad treatment would apply. Within, a: year, I found myself in the court of appeals arguing that this "unusual" procedure should not apply to high octane gasoline and air-polluting automobile commercials;; and~ I also found~ my argument to be a loser. The court of appeals ruiled' that the public health issues raised by ads for cigarettes and those other products were indistinguishablie. To put it succinctly, the court found that cigarettes simply were not unique. Happily, the end of the story came in 1974. By that time, I was Chairman of the FCC and was ablie to convince the Commission to change the Fairness Doctrine's entire application, to advertising. We ruled that only if commercials made an obvious and meaningful argument on, a controversial issue would fairness even come into play. In other words, there would'e be no application of the doctrine to implicit claims for example, an automobile advertisement showing healthy people simply enjoyingg the product. I thought this was the end of the story until the American Bar Association recently began debating whether to support the American Medical Association's call! for a ban on all advertising The Washington L'egalF'roundation (""1X/LF"")i is a 501 (Q(3)I taxexernpt organization and isA'mericj"s largest pro-(reeenterprise public interestlaw& policycenter. This Ilegal Backgrounderis one of a seriesof original: papers written especially for and published byWCff's Legal Studies Division.

of tobacco products. And why such~ a ban? Once again, the clarion~ call was sounded!• cigarettes allegedly presented a: unique health danger justifying this action. It all sounded very familiar and, to me, very disturbing. Accordingly, I became involved with the American Advertising Federation~ and other advertising-based entities in opposing this action. Fortunately, in March, the ABA rejected a resolution calling for it to join in AMA's ad ban campaign. This debate is highly important. What is at stake is not just an argument over a product's uniqueness. Instead, it is a challenge to the whole question of freedom of expression and freedom of advertising in a free society. The themes being voiced~ in support of the current advertising ban movement are superficialily attractive: good health, the welfare of our youth, a public-spirited cause supported by the medical profession, etc. But these seductive messages cannot be allowed to conceal what is really involved in the proposed~tobacco advertising ban. It is nothing less than a program of censorship, one which is contrary to the values which are central to our American way of life. As the Supreme Court has phrased it, the dissemination of truthful information "is not in itself harmful ... our citizens will perceive their own best interests if they are well enough informed'., and ... the best means to this end is to open channels of communications rather thaniclose them." Of course, the ban proponents assert that commercial speech is somehow different, that while it would be unthinkable to use thought-control techniques in the area of political or aesthetic speech, no serious threat to our freedoms would~ be posed by censoring commercially-oriented expression. In my judgment, this view seriously undervalues the free flow of information about goods and~ services in our country. Unlike societies that have opted'r for state-managed economics, this country is committed to a system in which individual citizens have personal autonomy in their consumer choices. Moreover, I believe that censorship is contagious. If you sanction it in order to d'eal with one perceived social evil, it will only be a matter of time until that precedent will be used in other areas, to the detriment of our free society. In my opinion, this is a lesson that a lot of good people are forgetting in their concern over tobacco products. Once you go down the censorship road~, there is simply no turning back. Finally, a long line of Supreme Court cases has recognilzed that, in fact, the First Amendment does apply to the truthful advertising of lawful products. Now, the would-be censors would be quick to cite the Supreme Court's 1986 decision in, a case upholding a ban on casino advertising in Puerto Rico, Posadas de -2- Toreceive, information about previous Washington Legal Foundation~putbllcations contact Michael P.' McDonald, President, Legal Studies DiNision: Material concerningiVt/LF'sotfler legal programs and activitiesrnaybe obtaimed, bycontacting Daniel J. Popeo; Chairrrnan,

Puerto Rico v. Tourism Company of Puerto Rico. But the set of facts considered there were extremely unusual. Significantly, the "prohiibition" in that case di,d not extend to ads directed at tourists, but only to local residents. I do not believe that this one, aberrational case has overruiled~ the entire body of commercial speech precedent developed~ by the Supreme Court over two decades. However, even, if the current Supreme Court could be persuaded that a: tobacco advertising ban could pass constitutional muster, this would be very poor and, indeed, dangerous public policy for a number of reasons. First, as indicated, the ban simply could not be limited to cigarettes. It q;uickly would spread to other products -- indeed, any product which might be deemed' hazardous by someone. And, without q,uestion, this would seriously damage our system of commercial advertising and, in the process, our entire economy. Second, the ban advocates assert that tobacco advertising is not truthful (and, thus, deserves no con~stitutional protection). They d'o so on the theory that such advertising does not tell "the whole story." But under such a standard, all advertising would be subject to attack. Third'., the Supreme Court has indicated that any limitation on commercial speech, must represent the least restrictive means necessary to accomplish the goal intended. However, clearly that would not be the case here, given the possible alternatives that could be considered (if deemed necessary), including requiring more information about any harmful qualities of the product. Finally, there exists no solid evidence that a ban would affect consumption of the product. Tobacco advertising has already been prohibited in a number of other countries (many of which don"t enjoy our constitutional freedoms) and there is little to demonstrate that cigarette u~se has declined iin those areas. In fact, in some cases, usage actually may have increased where advertising has been prohibited. In all, what the data drawn from other countries seem to show is that other factors (such as market structure, product availability and price, societal norms, and health issue publicity) are the underlying determinants of demand and not a prohibition on advertising. The ban-the-ad crowd then would argue: if it's true that commercials d'on't affect usage then why would anyone advertise in the first place? The answer lies in the opportunity to introduce new products and to tout the asserted' advantage of existing products. In other words, tobacco advertising is primarily designed to affect brand loyalty. There is absolutely nothing wrong with this. Indeed, I think the public is greatly benefited initerms of enhanced consumer choice.

F'ortunately, many others oppose a ban on the ad'verti~sing of tobacco products. In add'ition, to the ABA, the Department of Justice and the Federal Trade Commission in, this Administration have strongly rejected the prohibition concept. According to the Department of Justice: "A federal ban on advertising of a lawful product raises serious questions in li,ght of our constitutional structure and the free expression guaranteed by the First Amendment."' And FTC Chairman Oli~ver recently observed: "I believe that a ban on tobacco advertising would~be more likely to harm consumers than to help them." The principle being defend'ed can be simply stated: the right to advertise truthfully a lawful product. And the challenge to this principle is also abundantly clear: it is a proposed program of censorship which is alien to our traditions and our cherished freedoms. [Mr. Wiley is a partner in the Washingtom, D.C. law filrm of Wiley, Rein & Fielding. He was formerly General Counsel, Commissioner, and Chairman of the Federal Communications Commission.]