* While the FDA does not currently have jurisdiction over tobacco,
there are numerous initiatives to give the agency such jurisdiction
-- including some legislative proposals favored by the tobacco industry
-- and good reason to expect Congress will confer jurisdiction in the
near future. FDA should consider the issue of tobacco advertising in
determining its posture on commercial speech issues.
* There is an abundance of evidence that tobacco advertising has extremely
harmful consequences, leading to increased smoking rates, especially
among youth.
* Studies have found that:
- advertising campaigns using universal themes -- not just those
obviously directed at youth -- are effective at luring youth into
smoking;
- the same advertising that encourages or discourages brand switching
is also effective at convincing new smokers to start;
- even very young children have enormous recall of cigarette brands
and advertising, thanks to industry marketing efforts;
- internal industry documents show Big Tobacco acutely aware of
the importance of advertising and marketing in seducing new smokers.
* Appropriate public health policy would involve a complete prohibition
on tobacco advertising and marketing. Lesser measures might include
various bans on restrictions on particular types of advertising most
likely to reach kids. There are significant public health benefits to
be obtained from restrictions on advertising that could probably not
be justified on the grounds that they are untruthful or misleading.
* Moreover, there is a wide array of desirable tobacco control measures
(such as cigarette tax increases). If every advertising restriction
must show it is the least-speech-restrictive means to lessen smoking,
a court could argue that one or another of these alternatives should
be used in place of restrictions on advertising. It is thus crucial
that FDA work to advance a constitutional jurisprudence that is less
protective of marketing.
* There is wide international support for advertising bans -- or at
least severe advertising restrictions -- based on overwhelming evidence
of the public health benefits from outlawing tobacco advertising.
