What limits can the FDA place on tobacco advertising? The law gives the FDA broad authority to restrict marketing and promotion "to the fullest extent permissible" under the 1st Amendment -- a limit that is certain to be tested in future court cases.
The law gives the FDA specific permission to implement a spate of regulations it had set out in 1996, when the agency first asserted its right to regulate tobacco products. Those early rules -- and now the tobacco law -- were very specific about some of the restrictions the agency can impose.
For The Record
Los Angeles Times Wednesday, July 01, 2009 Home Edition Main News Part A Page 4 National Desk 1 inches; 58 words Type of Material: Correction
'New' tobacco products: An article in Monday's Health section about the Food and Drug Administration's new regulatory powers over tobacco said that the agency would consider any tobacco products introduced after June 2003 "new" products, and could therefore consider whether they may remain on the market. The law defines new products as those introduced after Feb. 15, 2007.
For The Record
Los Angeles Times Monday, July 06, 2009 Home Edition Health Part E Page 6 Features Desk 1 inches; 58 words Type of Material: Correction
'New' tobacco products: A June 29 Health section article on the Food and Drug Administration's new regulatory powers over tobacco said that the agency would consider any tobacco products introduced after June 2003 "new" products, and could therefore consider whether they may remain on the market. The law defines new products as those introduced after Feb. 15, 2007.
Among those rules was a requirement that all advertising of tobacco products be in stark black-and-white only when it appears outdoors, in and around stores where tobacco is sold, or in publications with significant teen readership.
The content of the advertising messages for tobacco products is also subject to strict FDA regulation under the new law. Advertisements and packaging touting cigarettes as "light," "mild" or "low" are banned, unless the manufacturer can prove that the product -- as it is actually smoked or consumed by users -- will significantly reduce the risk of tobacco-related diseases.
How can the FDA regulate the sale or marketing of tobacco to kids beyond the age restrictions on purchase of tobacco products that are already in place? The FDA can limit the advertising of tobacco products anywhere it believes that children and teens are the intended or the unintended audience for their pitches. The FDA's 1996 rule banned all outdoor advertising within 1,000 feet of schools and playgrounds, outlawed all remaining tobacco brands' sponsorship of sports or entertainment events, and ended any giveaways of goodies with the purchase of a tobacco product. All of these were marketing practices thought to appeal specifically to young people.
As for selling tobacco to minors, that would now be a federal offense, enforced directly by federal authorities instead of states.
Does the FDA have other powers to influence tobacco use? Yes, it has two. First, the law leaves to the FDA the decision of what future tobacco packaging will look like -- whether cigarette packages, for instance, will be required to carry warning labels in the form of bold language or graphic images depicting the health risks of smoking. That authority is likely to set up a debate among anti-smoking activists and health experts about the effectiveness of messages that scare or horrify in helping smokers quit.
Another of the FDA's most intriguing new powers is the right to demand of tobacco companies details of research they have conducted on the contents and health effects of existing and future products --and, potentially, to release those findings to the public.
That is likely to bring American consumers further details about the estimated 60 carcinogens and 4,000 toxic substances found in tobacco products or created when they're smoked.
It is also likely to bring to light tobacco-sponsored marketing and scientific research on smokers' motivations and behavior, and their propensity to addiction, and what ingredients or advertising messages can enhance that propensity.
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melissa.healy@latimes.com
