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Ruling May Boost FDA's Ad Crackdown

Marketing: Court upholds Baltimore's ban on most billboards for alcohol and tobacco.

November 15, 1996|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

A federal appeals court has upheld Baltimore's bans on billboards advertising tobacco and alcohol in most parts of the city, a ruling that could significantly bolster the Food and Drug Administration's efforts to keep alcohol and cigarette ads away from children.

The U.S. 4th Circuit Court of Appeals in Richmond, Va., by a 2-1 vote Wednesday, upheld the 1994 statutes--the most restrictive of their type in the nation. The laws ban "publicly visible" cigarette and alcoholic beverage ads except on property adjacent to an interstate highway, in heavy industrial zones and at sports stadiums.

The 4th Circuit said that government entities could constitutionally impose reasonable restrictions on cigarette and alcohol advertising in order to protect children from being exposed to this type of advertising.

Assistant Atty. Gen. Frank W. Hunger said the U.S. Justice Department, which filed a friend-of-the-court brief on Baltimore's behalf, said the ruling's import extended beyond the Baltimore case. "This will further strengthen the ability of governments and governmental entities, such as the FDA, to keep alcohol and cigarette advertising away from kids," he said.

Southern Illinois University law professor Donald W. Garner, a supporter of the Baltimore law, also said the ruling was particularly significant because the cigarette industry is currently challenging the FDA regulations in a North Carolina federal court that is part of the 4th Circuit.

Tobacco industry representatives said they disagreed with the ruling and took issue with the Justice Department on its potential impact.

The FDA regulations would restrict "all advertising that reaches children," including billboard and point-of-sale advertising, to a "black and white, text-only format." The FDA regulations also would prohibit even the no-color, no-image billboards within 1,000 feet of schools and playgrounds.

The tobacco industry has challenged the regulations in a federal lawsuit on three primary grounds, including contentions that the rules are an unconstitutional restriction on the industry's free speech rights and that the FDA has no lawful jurisdiction over cigarettes.

The 4th Circuit rejected that argument in the Baltimore case, stressing that the ban complements preexisting state legislation that prohibits the sale of cigarettes and alcohol to minors. The appeals court also noted that the U.S. Supreme Court has repeatedly held that "children deserve solicitude" when assessing First Amendment arguments "because they lack the ability to assess and analyze fully the information presented through commercial media."

The decision comes in the wake of a U.S. Supreme Court decision in May that struck down laws in Rhode Island and 10 other states that forbid retailers to advertise their prices for beer, wine or liquor. On a 9-0 vote, the high court said that government cannot bar the promotion of lawful products it deems undesirable.

Soon thereafter, lawyers representing alcohol and tobacco interests asked the 4th Circuit to reconsider its 1995 ruling upholding the Baltimore statutes. The court reconsidered the case but held that the Rhode Island "44 Liquormart" ruling did not provide a basis for overturning the Baltimore law.

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