First Amendment Analysis of Tobacco Advertising and the McCain Committee Bill

By Robert L. Kline

    A. Congress Has The Constitutional Power To Regulate Commercial Speech

The Supreme Court has a large body of case law setting forth the standards to which the government must adhere in order to regulate commercial speech.1 Federal tobacco advertising restrictions meeting those standards would be constitutional. Section 121 and 122 of the McCain Committee bill set forth advertising restrictions to be included in "Protocols" to be entered into by the Secretary of Health and Human Services with the participating tobacco product manufacturers. These "Protocols" are essentially contractual agreements between the federal government and the tobacco companies.2 Congress has the power to directly limit tobacco advertising and need not be confined to setting forth terms of a protocol. This paper will discuss the power of Congress to regulate commercial speech in the context of tobacco advertising regulation.

Tobacco advertising can be regulated, but the regulations must conform to the four-part commercial speech test set forth by the Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 328 (1980). First, the speech must qualify for constitutional protection (e.g., cannot be obscene or fraudulent). Second, the restriction must further a substantial state interest. Third, the restriction must directly and materially advance the government interest. Fourth, there must be a reasonable fit between the method chosen and the state interest. It need not be the least restrictive alternative, but it must be "sufficiently tailored to its goal." Rubin v. Coors Brewing Co., 115 S.Ct. 1585, 1593 (1995).

The McCain Committee bill's advertising regulations are constitutional. These regulations include limitations on outdoor advertising, advertising in publications with a significant youth readership, and advertising on the Internet. Central Hudson requires that the government regulation materially and directly advance the government interest and that the restriction be no more extensive than necessary. Existing social science evidence shows that the restrictions will directly and materially advance the government interest in preventing children from being enticed by tobacco advertising to try a dangerous product. The current congressional restrictions will directly advance the government interest because the research shows that advertising is an important factor in a child's decision to begin using tobacco products.3 Curtailing tobacco advertising that appeals to children will reduce children's experimentation with tobacco products.

The McCain Committee bill regulations materially advance the government interest because the advertising regulations will significantly reduce the number of children who would try tobacco products.4 Since the FDA published its Final Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents in August 1996, additional information from tobacco industry files released during litigation, as well as from social science studies, has proven beyond contradiction that the industry targeted children through its advertising and promotion and that these activities were effective in achieving their intended goal of increasing cigarette consumption by our youth.5

The "narrowly tailored" test in the commercial speech context requires that the legislation be no more extensive than necessary. This is not to be confused with the "least restrictive alternative" test that is employed in cases of strict scrutiny by the courts. Meeting this lesser standard is possible with a carefully crafted statute. The proposed advertising restrictions are no more extensive than necessary because they limit advertising in forums where parents are unable to protect children from viewing tobacco advertising including outdoor advertising and advertising using cartoon, human and animal figures. The McCain Committee bill restricts outdoor advertising6 and prohibits cartoon, human and animal figures from being used in tobacco advertising7. It also restricts advertising in publications with at least 15 % youth readership or that are read by at least two million youth (e.g., Sports Illustrated) to the aptly named "tombstone advertising" (black text only on a white background). The restrictions would allow color advertising in those publications that have less than 15% youth readership and that are read by less than two million youth.8 These limited restrictions would still allow the tobacco industry to place color advertising of its products in magazines and newspapers with a mostly adult readership (e.g., Time, Newsweek, daily newspapers) and would allow tombstone style tobacco advertising in other forums. The tobacco industry would still have many ways to reach its alleged target audience of adult smokers.

Section 122(a)(1)(A) requires that tobacco advertising "contain no human image, animal image, or cartoon character." This is a loophole that the tobacco industry is already slipping through. Recent tobacco industry advertising shows, for example, cute anthropomorphic cigarettes, and cleverly positioned chili peppers that resemble a pair of lips smoking a cigarette. (See "Tobacco Ads Seek Glamour Without Camels, Cowboys", Wall Street Journal, B1 2/20/98). Such advertising is eye-catching, appealing, and completely legal under the proposed legislation. To close this loophole, tobacco advertising in all media would need to be limited to tombstone format.

B. Courts Have Upheld Tobacco Advertising Regulations

    The highest court to review tobacco advertising restrictions, the Fourth Circuit Court of Appeals, has twice upheld Baltimore's outdoor tobacco advertising restriction. In Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 862 F. Supp. 1402 (D. Md. 1994) the District Court held that Baltimore's regulation of tobacco advertising did not violate the First Amendment. Baltimore used a zoning-based model to limit outdoor tobacco advertising to non-residential areas where it was less likely that minors would view the advertising. The substantial government interest was protecting minors from being induced to engage in the illegal activity of acquiring cigarettes.

The Fourth Circuit Court of Appeals upheld this decision in Penn Advertising of Baltimore v. Mayor and City Council of Baltimore, 101 F.3d 332, 333 (1996). The Fourth Circuit specifically held that the Baltimore ordinance was no more extensive than necessary because it only addressed residential areas where the advertising was more likely to be seen by minors.

It is important to note that the Fourth Circuit reaffirmed its decision in Penn Advertising after the Supreme Court had asked it to review its decision in light of the Supreme Court's decision in 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct. 1495(1996). (complete ban on liquor price advertising aimed at adults was unconstitutional where entire topic was banned and the government's goal of reducing consumption was not sufficiently related to the commercial speech restriction). The Fourth Circuit noted several differences between the liquor price advertising restriction in 44 Liquormart and the limited restrictions in the Baltimore ordinance. 44 Liquormart dealt with a total ban on speech directed to adults and the Supreme Court held that there was not a close enough tie between the government's goals and its methods. The Fourth Circuit in Penn Advertising, by contrast, held that the Baltimore ordinance was a partial restriction of speech which targeted children. The court also held there was a close connection between the government's goals of preventing teen participation in illegal transactions and the limited speech restriction. See Anheuser-Busch v. Schmoke, 63 F.3d 1305 (4th Cir. 1995) (companion case to Penn Advertising addressing Baltimore's regulation of billboard liquor advertisements).

The Fourth Circuit specifically stated "[w]e have read the opinion in 44 Liquormart and have considered its impact on the judgment in this case. . . we conclude that 44 Liquormart does not require us to change our decision in this case." Penn Advertising of Baltimore v. Mayor and City Council of Baltimore, 101 F.3d 332, 333 (4th Cir. 1996), cert. denied, 117 S.Ct. 1569 (1997). Although the Fourth Circuit decision is not controlling law in other parts of the country, it demonstrates that a tobacco advertising restriction can be drafted to be constitutional and can withstand close judicial scrutiny.

    B. A Restriction Based on a Commercial Government Interest Survives Challenge With or Without Central Hudson

In 44 Liquormart, Justice Stevens suggested Central Hudson should be revisited on some issues, but would be retained where the commercial speech restriction is based on the government's interest in commercial matters.9 Under Justice Stevens approach, the Central Hudson analysis is still valid for economic matters and should be employed to prevent the aggressive sales practice of marketing a dangerous, addictive drug to consumers while denying its dangerous and addictive qualities. Thus far the Court has upheld speech restrictions limiting the aggressive sales practices of in-person attorney solicitations and direct mail by attorneys targeting injured parties or their survivors. Florida Bar v. Went-For-It, Inc., 115 S. Ct.2371 (1995); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). The tobacco industry's expensive, well-researched advertising campaigns employ aggressive sales practices in purposefully luring consumers into a drug habit. This is particularly true where the targets of the ad campaigns are minors.

    Justice Stevens' opinion in 44 Liquormart strongly suggests that the Court may in the future employ a stricter test than Central Hudson when considering prohibitions on speech which are aimed at achieving a non-commercial government purpose by keeping the public ignorant of truthful information. There are three ways to avoid this potential problem in the tobacco advertising context. First, the proposed legislation should not be a prohibition; it should allow the dissemination of truthful, non-misleading information about the product if it is presented using tombstone lettering. The industry can continue to advertise its product to adults. Second, the restrictions should not affect truthful information about the product. Tobacco advertisements should still be allowed to address the factual qualities and "benefits" of the product, including levels of tar and nicotine, and price. Third, the goal of the regulation should be related "to the preservation of a fair bargaining process," thus implicating the government's interest in the commercial realm. One of the stated government goals should be the rebalancing of the uneven bargaining process between the deceitful manufacturer of an addictive drug and minors and others who have been manipulated by previous advertisements and public statements into dependence on that drug.

All proposed tobacco advertising legislation should include economic consumer protection as one of its goals. This could include rebalancing the respective bargaining positions of the parties because of the lack of truthfulness of the manufacturer as to the health impact on the consumer. The industry's failure to notify consumers of nicotine's addictive qualities and the industry's strenuous and deceitful denial of the harmful qualities of the product led consumers to make choices without being fully informed. Consumers need not make the most informed or the "best" decision, but when the manufacturer purposely misleads the consumer the ability of the government to set the bargaining process aright is clear. Congress should employ the rationale that advertising that entices children to use a product that it is illegal for them to purchase is an unfair advertising practice. See Mangini v. R. J. Reynolds Tobacco Co., 20 Cal. Rptr. 2d 232 (Cal. App. 1st 1993); aff'd 875 P.2d 73 (Cal. 1994).

Thus the McCain Committee bill should include language in the legislative "purposes" or "goals" section of the legislation specifically setting forth that the legislation is intended to rebalance the bargaining position of the tobacco industry and its consumers by restricting tobacco advertising. If the Supreme Court were to take a more protective view of commercial speech regulation in the future, it would likely still allow commercial speech regulation that was based on the government's interest in the commercial sphere. Therefore it is important to include in the findings and purposes sections of legislation that the government's goal in regulating advertising includes economic and commercial interests. These could include prevention of unfair advertising (advertising dangerous addictive products to youth), or rebalancing inequitable bargaining positions between the seller of an addictive drug and the addicted consumer as a matter of economic (as opposed to health-based) consumer protection. For example, the Findings or Purposes section of the bill could state: "It is in the government's interest to prevent unfair and illegal advertising practices. The tobacco industry has purposely targeted minors with sophisticated advertising practices, thus enticing minors to purchase or otherwise acquire tobacco products. The government must exercise its economic consumer protection role by restricting the tobacco industry's commercial advertising practices which are aimed at minors who are too young to use tobacco products and too young to make the decision to use tobacco products."

D. Constitutional Internet Advertising Regulation

Reno v. ACLU, 117 S.Ct. 2329 (1997), the famous "indecency on the Internet" case, does not prevent Congress from regulating tobacco industry advertising on the Internet. Reno is a case involving restrictions on political speech which receives the strictest scrutiny by the courts. Tobacco advertising restrictions are commercial speech and would not receive the same level of scrutiny, making Reno an inappropriate analogy.

The McCain Committee bill's section 122(a)(1)(F) restricts tobacco advertising on the Internet unless it "is designed to be inaccessible in or from the United States to all individuals under the age of 18."10 This provision is constitutional if it is taken literally and interpreted to apply to advertising and not to all tobacco industry speech. In Reno, the Court found the Communications Decency Act unconstitutional. The government could not restrict "indecent" speech on the Internet because 1) "indecency" was defined vaguely, 2) the statute would silence many voices because of the broad amount of speech affected, and 3) speakers would self-censor because they could not know the age of the recipient of the message. In the present case, it is clear that only a limited number of speakers and type of speech (e.g., tobacco industry advertising) would be affected. The tobacco industry would still be able to communicate information over the Internet by maintaining its own websites; it just could not advertise on other websites. Communication would not be interrupted; just the opportunity to use advertising gimmicks to entice children to try tobacco products.

Also, the drafters must clarify Section 122(a)(6).11 This subsection appears to address promotional items or merchandise that bear cigarette brand names. Yet, it is not clear what (6)(B) refers to - is it the Internet? A medium yet to be created? Advertising in movie theaters? Concerts? Would all of these be covered by the language in (6)(A) regarding "nonpoint-of-sale promotional material (including direct mail), point-of-sale promotional material"? Section 122(a)(6)(B) provides that the tobacco manufacturer give the Secretary notice of the intent to advertise in the medium, but does not authorize the Secretary to act on that information.

    C. Mandating "Voluntary" Protocols Violates the Unconstitutional Conditions Doctrine

Advertising restrictions included in existing consent decrees settling actual litigation between the states and the tobacco industry would be enforceable between those parties without further action by Congress. The separate agreements reached by Mississippi, Florida and Texas with the tobacco industry are enforceable already. Similar settlements reached in the future would also be enforceable.

Ironically, congressional action granting the industry any measure of protection from the normal consequences of the civil justice system in exchange for "voluntarily" accepting restrictions on advertising may raise "unconstitutional conditions" doctrine problems. Although the government may grant benefits to parties (here, immunity for the tobacco companies), the government may not condition the availability or access to those benefits upon the relinquishment of constitutional rights (voluntarily waiving what the industry perceives as its First Amendment rights). Speiser v. Randall, 357 U.S. 513 (1958) (premising an otherwise available property tax exemption on disavowing a belief in overthrowing the government is unconstitutional); Perry v. Sindermann, 408 U.S. 593 (1972); FCC v. League of Women Voters of California, 468 U.S. 364 (1984). The legislative history is already rife with comments regarding giving the industry a "quid pro quo" and making a "deal."

The difference between the enforceable promises in state settlements and the doubtfully enforceable promises in a legislative "protocol" is the powerful judicial policy favoring case settlements. Individuals make choices to plea-bargain away their liberty in criminal cases everyday, but that does not mean that Congress can legislatively impose a system of rewards designed to inhibit the exercise of constitutional rights by an entire category of right-holders (arguably extinguishing a method of speech on a particular topic by all potential speakers). Tobacco companies that sign the "Protocols" are granted exemptions from the civil justice system that place the signatories at an enormous competitive advantage compared to non-signatories. The economic need to maintain litigation parity with competing tobacco companies makes the "voluntary" waiver of First Amendment rights coercive. This argument is enhanced by the industry's recent claims that the failure to grant it the immunity it seeks will lead to bankruptcies.

If Congress has the constitutional authority to restrict tobacco advertising it need not bargain away injured plaintiffs' rights to compensation from the industry. If Congress does not have constitutional authority, then receiving the industry's permission may not insulate the restriction from challenge under the unconstitutional conditions doctrine. The benefit of the bargain to the government would be to buy peace based on the promise by the major tobacco companies not to challenge the First Amendment restrictions. But there are many other parties who have standing to bring suit including billboard companies (such as Penn Advertising, the plaintiff in the Baltimore billboard case), advertising agencies (such as Coyne-Beahm, the first plaintiff in the FDA challenge), small tobacco companies and convenience store owners. A successful challenge could conceivably result in the entire advertising restriction section being found unconstitutional.

F. Non-Severability of Advertising Restrictions and Civil Liability Section

              In the face of concerns that the advertising restrictions contained in the bill may violate the First Amendment, the McCain Committee bill seeks to preserve the implicit "quid pro quo" behind the bill by means of a provision explicitly linking the advertising restrictions to the bill's limitations on tobacco companies' civil liability. Specifically, section 8 (entitled "Liability Limitations Disappear If Tobacco Product Manufacturer Challenges Advertising Limits") stipulates that, if a tobacco manufacturer or anyone acting on behalf of a tobacco manufacturer brings a suit to challenge the advertising restrictions, then the liability limitations of Title VII will become inoperative for that manufacturer.

              This linkage provision itself is likely to face constitutional attack, on the ground that it impermissibly interferes with the due process right of affected parties to seek judicial review of the constitutionality of provisions that burden them. The tobacco companies are adversely affected by the advertising restrictions and would ordinarily be entitled to challenge their constitutionality in the courts. Here, however, they face a severe financial penalty, in the form of the loss of the liability limitation, for simply asserting their legal rights. The imposition of such a burden as the price for asserting a constitutional claim is sure to invite close judicial scrutiny.

The current non-severability section is also likely to face a challenge on the additional ground that it penalizes tobacco companies, by denying them the benefits of the liability limitations, for conduct over which they have no control, if the First Amendment challenge to the advertising restrictions is brought, not by the tobacco company, but by some other interested party, such as a publisher, advertising agency, or "consumer" of tobacco advertising, who is alleged to have acted "on behalf of" the tobacco company. A large loophole exists, however, if some other interested party brings such a challenge and succeeds in having the advertising restrictions enjoined; section 8 still allows the tobacco industry to benefit from the civil liability limitations if it maintains "plausible deniability" that it did not encourage the legal action.

              A more conventional approach to the linkage between advertising restrictions and liability limitations would be far less problematic. The bill could simply incorporate a declaration of the congressional intent that these two portions of the bill not be severable from one another. Such a declaration would simply reflect the actual congressional understanding of the quid pro quo relationship between these two elements of the bill. Such a declaration of congressional intent will routinely be honored by the courts, by striking down the two elements together if either does not pass constitutional muster.

              Thus, such a non-severability declaration would achieve much the same effect as section 8. If the advertising restrictions were found unconstitutional, the tobacco companies would lose their liability limitations as well.12 But this consequence would operate, not as a penalty for challenging the advertising restrictions, but rather as a simple recognition of the congressional understanding that these two elements of the bill constituted a single, inseparable package. This approach would also deny the benefits of the civil liability section to all tobacco companies if any company or its surrogate challenged the First Amendment provisions.

G. Preemption

Congress should also specifically repeal the preemptive language of the Federal Cigarette Labeling and Advertising Act (FCLAA) 15 U.S.C. 1334 and the Comprehensive Smokeless Tobacco Health Education Act of 1986 (CSTHEA) (15 U.S.C. 4401). These statutes preempt state and local efforts to regulate tobacco advertising based on the government's interest in smoking and health, even though tobacco use is the greatest public health threat in America. Freeing state and local governments to participate in regulating tobacco advertising is not a constitutional issue and can be achieved by simply amending a prior statute. Indeed, an earlier version of the McCain Committee bill specifically repealed the preemptive provisions of the FCLAA and CSTHEA. See Section 118 "Repeals" of S.1414 (the 1997 bill filed by Senator McCain). The anti-preemption language in Section 5 of the McCain Committee bill does not apply to the FCLAA because it refers only to the McCain Committee bill and the Federal Food, Drug and Cosmetic Act of 1938. In addition, Title III of the McCain Committee bill, Tobacco Product Warnings and Smoke Constituent Disclosure, specifically amends the warning label aspects of FCLAA but fails to amend the preemptive language of FCLAA.

Section 101 of the McCain Committee bill amends the Federal Food, Drug and Cosmetic Act of 1938. These amendments generally address the FDA regulations. Section 914, inter alia, of the amendments to the 1938 Act addresses the issue of preemption of state and local authority to regulate tobacco advertising.13 Section 914(2)(A) lists areas where state and local governments are preempted and Section (2)(B) lists exceptions to (2)(A) setting forth topics specifically not preempted .14 The exceptions to preemption in (2)(B) include the advertising and promotion of a tobacco product. However, since this anti-preemption provision is included as an amendment to the 1938 Act it may apply to the 1938 Act only and not to the McCain Committee bill itself.

    D. Conclusion

    The Supreme Court has repeatedly upheld commercial speech restrictions if they pass intermediate level judicial scrutiny. A carefully crafted tobacco advertising statute can achieve this goal without the need to bargain with the tobacco industry or establish industry-government "protocols". The McCain Committee bill needs to be strengthened to limit tobacco advertising to a tombstone format to prevent the tobacco industry from enticing youth to experiment with an addictive drug. The tombstone format will allow communication of information to adult consumers and will meet the Supreme Court's Central Hudson test for commercial speech regulation.

Robert L. Kline

Staff Attorney

Tobacco Control Resource Center

Northeastern University School of Law

(617) 373-7846

e-mail rkline@lynx.neu.edu

REFERENCES:

1 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 328 (1980); 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct. 1495(1996).

2 See section 6 (24), "The term "Protocol" means the agreement to be entered into by the Secretary of Health and Human Services with the participating tobacco product manufacturers under this Act."

3 See e.g., Pierce, et al., Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association With Targeted Advertising, 271 JAMA 608 (1994). Researchers reported a strong link between tobacco promotion and the decision by adolescents to begin to smoke, Pierce, et al., Tobacco Industry Promotion of Cigarettes and Adolescent Smoking, 279 JAMA 511 (1998), and that brands popular among young adolescents advertise more heavily in magazines with high youth readership. King, et al., Adolescent Exposure to Cigarette Advertising in Magazines, 279 JAMA 516 (1998). Also, six year olds recognize Joe Camel as readily as Mickey Mouse. Fischer, et al., Brand Logo Recognition by Children Aged 3 to 6 Years Old: Mickey Mouse and Old Joe the Camel, 266 JAMA 3145 (1991). They also know Old Joe is associated with cigarettes.

4 See FDA Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, Federal Register Vol. 61 page 44475.

5 After the introduction of the Joe Camel ad campaign in the late 1980s the market share of Camel cigarettes in the teen market increased at least 20-fold, and the previous decline in teenage smoking was reversed. Changes in the Cigarette Brand Preferences of Adolescent Smokers - United States, 1989-1993, 272 JAMA 843 (1994). The rise in young girls smoking habits after the tobacco industry decided to go after girls as a target market has also been documented. Pierce, et al., Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association With Targeted Advertising, 271 JAMA 608 (1994). Pierce, et al., Tobacco Industry Promotion of Cigarettes and Adolescent Smoking, 279 JAMA 511 (1998), Researchers have also documented that brands popular among young adolescents advertise more heavily in magazines with high youth readership. King, et al., Adolescent Exposure to Cigarette Advertising in Magazines, 279 JAMA 516 (1998).

6 "The protocol shall require that no tobacco product will be sold or distributed in the United States unless its advertising and labeling (including the package) . . . are not outdoor advertising, including advertising in enclosed stadia and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment." Section 122(a)(1)(B).

7 "The protocol shall require that no tobacco product will be sold or distributed in the United States unless its advertising and labeling (including the package) contain no human image, animal image, or cartoon character." Section 122(a)(1)(A).

8 "The protocol shall require that no tobacco product will be sold or distributed in the United States unless its advertising and labeling (including the package) . . . (G) use only black text on white background, other than (i) those locations where self-service displays are permitted under subsection 123, if the advertising is not visible from outside the establishment and is affixed to a wall or fixture in the establishment, and (ii) advertisements appearing in any publication which the tobacco product manufacturer, distributor, or retailer demonstrates to the Secretary is a newspaper, magazine, periodical, or other publication whose readers under the age of 18 years constitute 15 percent or less of the total readership as measured by competent and reliable survey evidence, and that is read by less than 2 million persons under the age of 18 years as measured by competent and reliable survey evidence. Section 122(a)(1)(G).

9 "When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands." 44 Liquormart, 116 S. Ct. at 1505.

10 "The protocol shall require that no tobacco product will be sold or distributed in the United States unless its advertising and labeling (including the package) . . . (F) do not appear on . . . the Internet, unless such advertising is designed to be inaccessible in or from the United States to all individuals under the age of 18 years." Section 122(a)(1)(F).

11 "The protocol shall require that no tobacco product will be sold or distributed in the United States . . . (6)(A) except as provided in subparagraph (B) if advertising or labeling for such product that is otherwise in accordance with the requirements of this section bears a tobacco product brand name (alone or in conjunction with any other word) or any other indicia of tobacco product identification and is disseminated in a medium other than newspapers, magazines, periodicals or other publications (whether periodic or limited distribution), nonpoint-of-sale promotional material (including direct mail), point of sale promotional material, or audio or video formats delivered at a point of sale; but

(B) not withstanding subparagraph (A), advertising or labeling for cigarettes or smokeless tobacco may be disseminated in a medium that is not specified in paragraph (1) if the tobacco product manufacturer, distributor, or retailer notifies the Secretary not later than 30 days prior to the use of such medium, and the notice describes the medium and the extent to which the advertising and labeling may be seen by persons under the age of 18 years." Section 122(a)(6)(A)and (B).

12 Of course, under this approach, the liability limitations would remain intact until the advertising restrictions were invalidated, whereas under section 8's approach, the limitations would expire as soon as a challenge to the advertising restrictions was filed. The drafters may have been attempting to address a concern that, absent a provision like section 8, the tobacco companies could, for several years, derive benefit from a preliminary injunction barring application of the advertising restrictions, while continuing to enjoy the protection of the liability limitation, since there might still be no final judicial determination that the advertising restrictions were unconstitutional. However, a court confronted with a clear congressional declaration of the linkage between the two elements would likely hesitate to grant an injunction barring application of one element without enjoining application of the other element as well. Congress should explicitly provide that the non-severability section applies in the case of an injunction. In all likelihood, a strong non-severability provision would ensure the desired linkage between the application of the two elements.

13 See State and Local Authority section of this working paper.

14 Sec. 914(a)(2) Preemption of certain state and local requirements._

    (A) Except as provided in subparagraph (B), no State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement applicable under the provisions of this chapter relating to performance standards, premarket approval, adulteration, misbranding, registration, reporting, good manufacturing standards, or reduced risk products.

    (B) Subparagraph (A) does not apply to requirements relating to the sale, use, or distribution of a tobacco product including requirements related to the access to, and the advertising and promotion of, a tobacco product. (emphasis added)