United States: Kennedy Anti-Tobacco Bill Would Re-Invest FDA With Authority To Regulate Cigarette Marketing

Senator Edward Kennedy (D-MA) is spearheading an effort to return authority over tobacco advertising to the Food and Drug Administration (FDA) that was denied by the U.S. Supreme Court in its March 21, 2000 opinion in FDA v. Brown & Williamson Tobacco Corporation [pdf format]. The Youth Smoking Prevention and Public Health Protection Act (S.2626) [pdf format], co-sponsored by Senators Kennedy, Mike DeWine (R-OH), and Tom Harkin (D-IA), would grant the FDA effective authority over the manufacturing, marketing, and sale of tobacco products.

Among the tobacco-related responsibilities the bill would grant to the FDA are regulation over cigarette marketing and advertising directed at young people, requirements for larger warning labels, and review of health risks when new tobacco products are marketed. A Kennedy aide was quoted as saying the Senator intends to proceed quickly with the legislation. A similar bill, the FDA Tobacco Authority Amendments Act (H.R. 1097) [pdf format], sponsored by Representatives Greg Ganske (R-IA), John Dingell (D-MI), and Henry Waxman (D-CA), awaits action in the House.

Former FDA Commissioner David Kessler's original 1996 rules prompted lawsuits by ad and media groups and by tobacco makers, which culminated in the U.S. Supreme Court ruling that the FDA lacked authority to promulgate and enforce the rules. Ad Age reports that industry reaction to the Kennedy bill is mixed, with Philip Morris USA supporting the legislation while R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. "claim it hinders competition." Richard O'Brien, Executive Vice President of the American Association of Advertising Agencies, called the proposal "a direct assault on a legal product's ability" to advertise to the public. Dan Jaffe, Executive Vice President of the Association of National Advertisers, said, "It's one thing to say the FDA should have jurisdiction over tobacco. It is another thing to pass unconstitutional laws."

Why This Matters: If passed and signed into law, the Kennedy tobacco bill — which would limit tobacco companies’ commercial free speech rights — likely will be challenged and ultimately reviewed by the U.S. Supreme Court. Nonetheless, the bill enjoys bi-partisan support in the Senate.

This article originally appeared in ADLAW By Request, a publication of Hall Dickler Kent Goldstein & Wood LLP.