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Ashes to Ashes: Why FDA Regulation of Tobacco Advertising May Mark the End of the Road for the Marlboro Man

Published online by Cambridge University Press:  24 February 2021

Kathleen M. Paralusz
Kathleen M. Paralusz*
Affiliation:
University of Pennsylvania; Boston University School of Law
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Abstract

Despite education campaigns about the health hazards associated with smoking and the use of smokeless tobacco, teenage use of tobacco products has reached epidemic proportions. Recent studies indicate that adolescent smoking is on the rise, and that children are beginning to smoke at progressively earlier ages. “Nearly 3,000 young people start smoking each day,” accounting for more than one million new smokers each year. In addition, ninety percent of all new smokers are under the age of eighteen.

Although young people are generally aware of the serious, long-term health risks associated with tobacco use, studies suggest that those who smoke do not usually view those risks as applying to them personally. Furthermore, evidence shows that young people who begin to smoke know about the addictive properties of nicotine, but do not believe that they will become addicted. For these reasons, in August 1995, the Food and Drug Administration (FDA) proposed strict regulations aimed at reducing the number of children and adolescents who smoke. Several of these provisions target cigarette advertisements aimed at minors.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 24 , Issue 1 , 1998 , pp. 89 - 122
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1998

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References

1 See Kessler, David A. et al., The Food and Drug Administration's Regulation of Tobacco Products, 335 NEW ENG. J. MED. 988, 991 (1996)Google Scholar (stating that, although the number of adults who smoke is declining, adolescent smoking is on the rise); see also Cigarette Smoking Continues to Rise Among American Teen-agers in 1996, UNIV. MICH. NEWS & INFO. SERVICE, Dec. 19, 1996, at 1, 1-2 (reporting the results of a survey that found smoking rates ranging from 21% for 13 to 14 year-olds, to 34% for 17 to 18 year-olds, as compared to an adult smoking rate of 25%). In the U.S. Centers for Disease Control's (CDC) latest survey, 34.8% of high school students under the age of 17 said they had smoked in the previous month, up from 27.5% in 1991. See Laura Mansnerus, Don't Smoke. Please. Pretty Please., N.Y. TIMES, Sept. 15, 1996, at E5.

2 See Kessler et al., supra note 1, at 991.

3 See Richard Lacayo, Put Out the Butt, Junior: Will Tough New Regulations Aimed at Teen Smoking Stand Up? Not ff the Tobacco Industry Can Help It, TIME, Sept. 2, 1996, at 51, 51.

4 See Kessler et al., supra note 1, at 992-93. The studies indicated that only half of smokers and three-quarters of nonsmokers report that smoking a pack or more a day constitutes a serious health risk. See PUBLIC HEALTH SERV. ET AL., U.S. DEP't OF HEALTH & HUMAN SERVS., PREVENTING TOBACCO USE AMONG YOUNG PEOPLE: A REPORT OF THE SURGEON GENERAL 80 (1994) [hereinafter PREVENTING TOBACCO USE].

5 See Kessler et al., supra note 1, at 993. “Of students who smoke at least one pack a day and said they would ‘probably or definitely’ not be smoking in five years, only 13% did in fact quit. More than 72% continue to smoke at least one pack a day.” Id. (citing PREVENTING TOBACCO USE, supra note 4, at 86).

6 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 60 Fed. Reg. 41,314, 41,314 (1995).

7 See id.

8 See Reuters, FDA Counters Tobacco Industry's Effort in Court, WASH. POST, Dec. 3, 1996, at A3.

9 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44,396, 44,396 (1996). One regulation, requiring retailers to check photographic identification for anyone under age 27, went into effect on February 28, 1997. See id.

10 Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997).

11 See id. at 1400; see also Reuters, supra note 8, at A3. On October 15, 1996, cigarette makers and advertisers filed a motion in the U.S. District Court for the Middle District of North Carolina for a summary judgment against the Food and Drug Administration (FDA). See id. The plaintiffs sought summary judgment, claiming that “Congress ha[d] withheld the authority to regulate tobacco products as customarily marketed from FDA and that the [Federal Food, Drug, and Cosmetic Act (FDCA) did] not authorize FDA to regulate tobacco products as ‘drugs’ or ‘devices.'” Coyne Beahm, 966 F. Supp. at 1379. The motion challenged the FDA's authority to regulate tobacco products and argued that the advertising restrictions violated the First Amendment because they were ‘“more extensive than necessary’ to serve the government's asserted goal of reducing underage tobacco use.” Ira Teinowitz, Tobacco Firms, Ad Groups Fight FDA Regs in Court, ADVERTISING AGE, Oct. 21, 1996, at 57, 57 (quoting one party's brief).

12 See Coyne Beahm, 966 F. Supp. at 1400. Judge William Osteen held that the FDA may regulate tobacco products under the Federal Food, Drug and Cosmetic Act (FDCA). See id. at 1393. The court further held that, although the FDA determined that the primary mode of action of tobacco products is that of a drug, the FDA can also regulate tobacco products as a “device.” See id. at 1393-97. Finally, the court held that although the FDCA authorized restrictions on access and labeling, the FDCA did not authorize restrictions on the promotion and advertisement of tobacco products. See id. at 1399-400.

13 See id. at 1398.

14 See Saundra Torry, Duel in a County Courthouse, with Tobacco Regulation at Stake, WASH. POST, Aug. 18, 1997 (Wash. Bus.), at 7. During oral argument, attorneys for the tobacco industry argued that: (1) the agency's regulations were invalid because the FDA exceeded its authority in moving to regulate tobacco products; and (2) only Congress could launch such a regulatory initiative. See id. Solicitor General Walter Dellinger defended the FDA's regulations, arguing that the FDCA was broad enough to leave room for the FDA to regulate tobacco and that Congress had done nothing to prevent the agency from taking such an approach. See id. Legal experts are pessimistic about the agency's chances and predict that the case is destined for the Supreme Court. See id. There are several reasons for this conclusion. First, the Fourth Circuit covers several states in the heart of tobacco country. See id. Second, although judges are selected at random to hear appeals, two of the judges were Republican appointees and one of those, Donald S. Russell, is a former governor and U.S. senator from South Carolina, one of the nation's leading tobacco states. See id. Finally, during oral arguments, two of the judges repeatedly challenged Dellinger on the FDA's sudden decision to regulate tobacco, when the health risks of smoking “had been known for years.” Id. The panel's questioning remained skeptical, see id., despite the government's argument that it only recently learned how manufacturers manipulated the level of nicotine in cigarettes to satisfy smokers’ cravings. See David Reed, Firms Fight Ruling on Tobacco Restriction, COLUMBIAN, Aug. 12, 1997, at A5. The regulations have not gone into effect, pending the outcome of the litigation. See Coyne Beahm, 966 F. Supp. at 1399-1400; see also John Lofstock, It Was the Best of Times CONVENIENCE STORE NEWS, Dec. 15, 1997, at 28, available in 1997 WL 11169559 (noting that FDA regulations on tobacco had yet to take effect in 1997).

15 Kessler et al., supra note 1, at 991.

16 See Bojorquez, Jennifer, Why Do Kids Smoke?, SACRAMENTO BEE, Aug. 25, 1995 (Scene), at 1Google Scholar.

17 See PREVENTING TOBACCO USE, supra note 4, at 249.

18 See id. The Surgeon General's report examined 13 studies of over-the-counter sales and found that minors can buy cigarettes an average of 67% of the time. See id.

19 See Bojorquez, supra note 16, at 1.

20 See Kessler et al., supra note 1, at 991.

21 See id. Vending machines are most popular with younger smokers. See id. The vending machine industry conducted its own survey, which found that 22% of 13 year olds who smoke purchase cigarettes from vending machines, as compared to 2% of 17 year-olds. See id. (citing a study by the National Automatic Merchandising Association).

22 See id. (citing PREVENTING TOBACCO USE, supra note 4, at 249).

23 See id. (citing a study in which approximately 44% of ninth graders who smoked on a daily basis shoplifted cigarettes from self-service displays); see also COMMITTEE ON PREVENTING NICOTINE ADDICTION IN CHILDREN AND YOUTHS, INSTITUTE OF MED., GROWING UP TOBACCO FREE: PREVENTING NICOTINE ADDICTION IN CHILDREN AND YOUTHS 214-15 (Barbara s. Lynch & Richard J. Bonnie eds., 1994) [hereinafter GROWING UP TOBACCO FREE] (documenting restrictions on selling methods to prevent adolescents from obtaining cigarettes).

24 See Kessler et al., supra note 1, at 991 (citing an investigation by Scott Harshbarger, Attorney General of Massachusetts, in which virtually all of 30 minors assisting in the investigation received free samples of smokeless tobacco after mailing in coupons).

25 See id.

26 See White House Virtual Library, White House Press Release, Press Conference by the President, the East Room (Aug. 10, 1995) http://library.whitehouse.gov/Search/QueryPressReleases.html [hereinafter Press Conference].

27 Schudson, Michael, Symbols and Smokers: Advertising, Health Messages, and Public Policy, in SMOKING POLICY: LAW, POLITICS, AND CULTURE 208, 216 (Rabin, Robert L. & Sugarman, Stephen D. eds., 1993)Google Scholar (also suggesting that, despite the fact that only 15-30% of adolescents smoke, “advertising helps contribute to the fact that adolescents think a large majority of people their age smoke“). Dr. Michael Eriksen, head of the Office on Smoking and Health, of the CDC, called teenage smoking “almost a mathematical function” of adult disapproval. See Mansnerus, supra note 1, at E5.

28 See Schudson, supra note 27, at 216.

29 See id.

30 See Kessler, et al., supra note 1, at 992 (citing Changes in the Cigarette Brand Preferences of Adolescent Smokers—United States, 1989-1993, 43 MORBIDITY MORTALITY WKLY. REP. 577, 577-81 (1994)Google Scholar, which analyzes how adolescents choose particular brands of cigarettes).

31 See Kessler et al., supra note 1, at 992 (citing Fischer, Paul M. et al., Brand Logo Recognition by Children Aged 3 to 6 Years: Mickey Mouse and Old Joe the Camel, 266 JAMA 3145, 3145-18 (1991)CrossRefGoogle Scholar, which found that more than half of the subjects, children aged three to six years, paired Joe the Camel with cigarettes).

32 See Levin, Gary, Poll Shows Camel Ads Are Effective with Kids, ADVERTISING AGE, Apr. 27, 1992, at 12, 12Google Scholar (reporting the results of a study which found that, when asked to recall cigarette brands, 83% of teenagers aged 14 to 18 listed Marlboro, while 75% chose Camel).

33 See id.

34 See Reynolds, R.J., We Don't Advertise to Children, TIME, Apr. 9, 1984 (Advertisement), at 89, 89Google Scholar. In the advertisement, the company insists that “kids just don't pay attention to cigarette ads … . [Our advertising] purpose is to get smokers of competitive products to switch … [which is] virtually the only way a cigarette brand can meaningfully increase its business.” Id. But see Schudson, supra note 27, at 216-17 (stating that, although market share can logically justify tobacco companies’ promotional budget, the industry will die if tobacco firms cannot win the loyalty of teenage smokers because it will be much more difficult later on to persuade them to switch from one brand to another).

35 See Era of Industry Denial Ends as Tobacco Firm Fesses Up, L.A. TIMES, Mar. 21, 1997, at B8 [hereinafter Tobacco Firm].

36 See Levin, Myron & Stolberg, Sheryl, Tobacco Company Admits Smoking Leads to Cancer, L.A. TIMES, Mar. 21, 1997, at A1Google Scholar (noting that the Liggett Group, Inc. is the smallest of the five major U.S. tobacco companies). A subsidiary of the Brooke Group, Ltd., the Liggett Group commands just two percent of the industry's market share. See David Phelps, Tobacco Goes on Trial, STARTRIB. (Minneapolis-St. Paul), Jan. 18, 1998, at ID, available in 1998 WL 6337879. The company acknowledged that smoking causes cancer and heart disease and that nicotine is addictive. See Levin & Stolberg, supra, at A1. Under the terms of the agreement, Liggett will pay 25% of its pretax income during the next 25 years, as well as provide witnesses and documents to assist state attorneys general in prosecuting tobacco lawsuits around the country. See id.; Voris, Bob Van, Liggett Deal Suddenly Seems Sour, NAT'L L.J., June 16, 1997, at A7Google Scholar. In exchange for these concessions, Liggett would have received immunity from future class action lawsuits involving liability for smoking-related claims. See Levin & Stolberg, supra, at A1. In June 1997, Chief Judge Charles Haden II, a federal district judge in Charleston, West Virginia, declined to grant Liggett's motion for a preliminary injunction that would have granted the company immunity. See id. Judge Haden also dismissed the states that were included in the proposed settlement class but which failed to affirmatively release Liggett from liability. See id. However, he left the preliminary settlement approval in place, albeit temporarily, and ruled that Liggett may renew its motion. See id.

37 See Levin & Stolberg, supra note 36, at A1. In addition, the Liggett Group promised to abide by the FDA regulations on youth-oriented cigarette advertising and agreed to offer its employees and executives as witnesses in upcoming tobacco trials. See id.

38 See id. Immediately following the settlement, Philip Morris, R.J. Reynolds, Brown & Williamson and Lorillard, Inc. obtained a restraining order from a state court judge in North Carolina that temporarily barred Liggett from producing documents those companies deemed privileged. See id. However, Liggett has stated that it will file the disputed documents with each of the courts presiding over tobacco lawsuits, allowing individual judges to determine which should remain confidential. See id. In one such lawsuit, a Kansas state court judge refused to release more than 2418 internal tobacco industry documents. See Tobacco Judge Won 't Release Tobacco Documents, L.A. TIMES, NOV. 13, 1997, at D3, available in 1997 WL 13999814. Circuit Court Judge Fred Jackson granted the tobacco industry a stay, pending appeal. See id.

39 See Tobacco Firm, supra note 35, at B8.

40 Lauren Neergaard, Teens Focus of Tobacco Giant's Ads, COLUMBIAN, Jan. 15, 1998, available in 1998 WL 7178582.

41 See Associated Press, Tobacco Firm Targeted Teens, BALTIMORE SUN, Jan. 15, 1998, at 1A, available in 1998 WL 4946718. A 1987 memo stamped “RJR Secret” said that the company was creating a “wider-circumference nonmenthol cigarette targeted at young adult male smokers (primarily 13-to-24-year-old male Marlboro smokers).” Id. (quoting the memo). Shortly thereafter, the company began to sell Camel Wides. See id. In addition, a 1974 marketing presentation states, “'This young adult smoker, the 14-24 age group represents tomorrow's cigarette business.“’ Id. The company's marketing strategy included “a direct advertising appeal to the younger habits,” with “more true-to-life young adult situations.” Id. (quoting a 1980 memo by G. H. Long, a future company chief executive). The ads were to run in magazines with high teen readership, such as Sports Illustrated. See id.

42 See id. A 1973 marketing memo shows that the company planned to lure young smokers away from Philip Morris's Marlboros, then the leading brand among teens, by using “comic striptype copy” that “might get a much higher readership among younger people than any other type of copy.” Id. Shortly thereafter, the “Joe Camel” campaign debuted in France. See id. A separate memo, dated 1975, stated that, “‘[t]o ensure increased and longer-term growth for Camel filter, the brand must increase its share penetration among the 14-24 age group, which has a new set of liberal values and which represent tomorrow's cigarette business.'” Meier, Barry, Painting a Target on Teen Smokers, SACRAMENTO BEE, Jan. 15, 1998, at A1Google Scholar, available in 1998 WL 8805050.

43 See Meier, supra note 42, at A1.

44 CBS This Morning: New Evidence Finds Tobacco Companies Have Been Targeting Teen-Agers Since the 1970s (CBS television broadcast, Jan. 15, 1998) (Bob Schieffer reporting), available in 1998 WL 3648668. Perhaps the most damaging information these memos provide is that they show the involvement of top officials, including company directors, rather than mere low-level or renegade employees. See Meier, supra note 42, at A1.

45 See John Schwartz, Philip Morris Memos Detail Teen Habits, WASH. POST, Jan. 30, 1998, at A15, available in 1998 WL 2464923. For example, a March 1981 memo to Robert B. Seligman, Philip Morris's vice president for research and development, described the smoking habits of 12 to 18 year-olds and warned that, because smoking rates had declined since 1976-1977, the company would “no longer be able to rely on a rapidly increasing pool of teenagers from which to replace smokers lost through normal attrition.” Id. Another memo to Seligman, dated May 1975, attributed Marlboro's “phenomenal growth” to “our high market penetration among younger smokers,” described as 15 to 19 year-olds. Id.

46 See id.; see also Meier, supra note 42, at A1 (explaining that both companies utilized “direct advertising appeal” to attract younger smokers).

47 See, for example, Kessler et al., supra note 1, at 992, which noted a recent advertisement in Rolling Stone magazine, where a cardboard Joe Camel popped out of the center of the magazine holding concert tickets. On the first page of the Rolling Stone advertisement, Joe Camel, in black leather jacket and sunglasses, with a cigarette dangling from his mouth, says, “Wanna see a show?” See ROLLING STONE, Mar. 7, 1996 (Advertising Supp.), at 12-13. On turning the page, a Joe Camel foldout pops out of the magazine with a replica of two tickets in his hand. See id. The advertisement offers $25 gift certificates for Ticketmaster events in exchange for one hundred Camel Cash C-Notes. See id. Because each pack of Camels contained one C-Note, consumers would have to smoke one hundred packs of Camels to get the gift certificate. See Bob Herbert, Campaign for Tobacco-Free Kids Tries to Combat Allure of Joe Camel, SUN-SENTINEL, Oct. 23, 1996, at 23A.

48 See Schudson, supra note 27, at 217 (stating it is clear that “tobacco companies locate advertising in media they know reach large concentrations of teenagers and children“).

49 See Associated Press, Tobacco Firm Targeted Teens, Smokers As Young As 13, Say Memos From R.J. Reynolds, BALTIMORE SUN, Jan. 15, 1998, at 1A, available in 1998 WL 4946718. Previously secret R.J. Reynolds memos outline ads and marketing campaigns specifically designed for teenagers and contain a poll of 11,000 14 to 17 year-olds to determine their smoking habits. See id. One of the company's chief marketing strategies was to target young males by sponsoring sports-car racing and developing T-shirts and other paraphernalia that could provide “a million walking billboards for our brands.” Id. R.J. Reynolds released the documents to California attorneys as part of a $10 million settlement of lawsuits between the company and several California communities, including San Francisco, that accused the Joe Camel campaign of targeting teens. See id.

50 See Schudson, supra note 27, at 217.

51 See id.

52 See Kessler et al., supra note 1, at 991. The CDC predicts that approximately one out of every three young smokers will die prematurely from a tobacco-caused disease. See Scripps Howard News Service, Texas Antismoking Law Cracks Down on Teens, STAR-TRIB. (Minneapolis-St. Paul), Dec. 27, 1997, at 7A, available in 1997 WL 7595291. In addition, the World Health Organization estimates that, of children and adolescents who continue smoking throughout their lives, “half will be killed by tobacco … . [W]e can expect 200 million to 300 million children and adolescents under 20 currently alive to eventually be killed by tobacco.” Voelker, Rebecca, Young People May Face Huge Tobacco Toll, 274 JAMA 203, 203 (1995)Google Scholar.

53 See Noah, Timothy, Clinton's Tobacco Rule Restricts Ads in Media Deemed Accessible to Minors, WALL ST. J., Aug. 26, 1996, at B2Google Scholar.

54 See Kessler et al., supra note 1, at 988.

55 See id.

56 See Mark Curriden, Tobacco Exec Stuns Observers: Deposition Says Nicotine Can Be Addictive Drug, DALLAS MORNING NEWS, Aug. 22, 1997, at 1A, available in 1997 WL 11513917. Geoffrey Bible, Chief Executive Officer of Philip Morris, testified in a deposition that nicotine is a drug and could be addictive. See id. He also testified that cigarettes may have killed more than 100,000 smokers. See id. Bible's testimony was part of Florida's lawsuit against the tobacco industry, in which the state sought reimbursement for billions of dollars spent in Medicaid costs due to smoking-related illness. See id. The parties reached a settlement agreement in August 1997, under which Florida will receive SI 1.3 billion over a twenty-three-year period. See Tony Boylan, Tobacco Settles With State, FLORIDA TODAY, Aug. 26, 1997, at 1A. Prior to Bible's admissions, the Chief Executive Officer of Liggett Group, Bennett LeBow, testified that nicotine is addictive and causes cancer. See Curriden, supra, at 1A. However, at the time LeBow made his admissions, the rest of the industry characterized his testimony as influenced by the company's settlement with the state attorneys general. See id. Bible's admissions are particularly significant because Philip Morris controls over 50% of the nation's cigarette sales. See id. In addition, his testimony represents a dramatic shift from the industry's prior commitment to its position that cigarettes are not addictive and do not cause cancer. See id.

57 See Kessler et al., supra note 1, at 988.

58 Id.; see also Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 60 Fed. Reg. 41,314, 41,354 (1995) (stating that the proposed labeling and advertising restrictions “would reduce the use of cigarettes and smokeless tobacco products by those young individuals who are the most vulnerable to addiction and, perhaps, the least capable of deciding whether to use the products“).

59 See Noah, supra note 53, at A3.

60 See id. As of the time of publication, the Fourth Circuit's ruling concerning the constitutionality of the regulations is pending. See Torry, supra note 14, at 7.

61 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 44,438-39 (1995). This regulation went into effect on February 28, 1997. See id. at 44,439. According to FDA spokesman Brad Stone, the rule is designed to make it more difficult for “mature-looking youths” to purchase cigarettes. See Flick, David, BUYER PREPARE: Dallas Customers Coping with New Law Requiring ID from Anyone Under 27 Wanting to Purchase Cigarettes, DALLAS MORNING NEWS, Mar. 1, 1997, at 1AGoogle Scholar. In addition, the FDA will work with state and local officials to coordinate enforcement and, in some states, may set up sting operations using minors to purchase cigarettes. See id.

62 See 61 Fed. Reg. at 44,445.

63 See id. at 44,449-50.

64 See id. at 44,458-59.

65 See id. at 44,399.

66 See id.

67 See id. at 44,508-13.

68 See id. at 44,466. However, the regulations still permit such sponsorship in a corporate name. See id.

69 See Kessler et al., supra note 1, at 992.

70 See FEDERAL TRADE COMM'N, REPORT TO CONGRESS FOR 1995: PURSUANT TO THE FEDERAL CIGARETTE AND ADVERTISING ACT 17 tbl.3D (1997).

71 See Kessler et al., supra note 1, at 992 (citing studies that conclude advertising “substantially influences” young people's smoking and use of smokeless tobacco). Two reports on tobacco and young people, one by the Surgeon General and the other by the Institute of Medicine, studied the effects of advertising on youths and concluded that it is an important factor in their use of tobacco products. See id.; see also GROWING UP TOBACCO FREE, supra note 23, at 112 (arguing that “billboard ads expose children repeatedly to pro-tobacco messages and give the erroneous impression that smoking is pervasive and normative“).

72 See Kessler et al., supra note 1, at 992. These studies show that young people's exposure to cigarette advertising correlates with their smoking behavior and their intention to smoke. See id. The studies also indicate that cigarette advertising influences some young people to decide that smoking is a normal, socially acceptable behavior that they should embrace. See id.

73 See Levin, supra note 32, at 12.

74 See Kessler et al., supra note 1, at 992 (citing Robert Benzilla, The George H. Gallup International Institute, Teenage Attitudes and Behavior Concerning Tobacco, June-July 1992: United States (Jan. 1994) http://ucipr2.ipr.uc.edu/ICPSR/CB6252.HTM (reporting the results of a survey concerning ownership of promotional items that bear tobacco brand names)).

75 See Kessler et al., supra note 1, at 992 (citing the most recent data indicating that children watch televised motor vehicle sports 64 million times a year); see also Slade, John, Tobacco Product Advertising During Motorsports Broadcasts: A Quantitative Assessment, in TOBACCO AND HEALTH 925, 925-26 (Slama, Karen ed., 1995)CrossRefGoogle Scholar (reporting the results of a study that analyzed the “clear, in focus exposure” of tobacco industry brand names and logos during major networks’ broadcasts of auto races in a six-year period).

76 Kessler et al., supra note 1, at 988.

77 See id.

78 See id. at 992.

79 See Philip Morris Fights FDA Regulation, WASH. POST, Oct. 16, 1996, at A3. Philip Morris and other tobacco manufacturers filed a motion for summary judgment against the FDA to prevent the agency from regulating the sale and advertising of cigarettes. See id. The motion argues three points: that Congress has never granted the FDA authority to regulate the tobacco industry; that the FDCA does not authorize the FDA to regulate tobacco products as drugs or medical devices; and that the restrictions on advertising violate the First Amendment. See id. Kentucky and North Carolina filed “friend of the court” briefs in support of the motion. See id.; see also Lambert, Wade & Geyelin, Milo, FDA 's Planned Tobacco-Ad Rules Spur Suits Over Agency's Powers, WALL ST. J., Aug. 14, 1995, at B6Google Scholar (citing several lawsuits in which both the tobacco and advertising industries filed suits alleging that the FDA's rules violate the First Amendment).

80 See Lambert & Geyelin, supra note 79, at B6.

81 447 U.S. 557(1980).

82 See Harder, Charles J., Comment, Is It Curtains for Joe Camel? A Critical Analysis of the 1995 FDA Proposed Rule to Restrict Advertising, Promotion and Sales to Protect Children and Adolescents, 16 LOY. L.A. ENT. L.J. 399, 402-03 (1995)Google Scholar. Since the federal government became aware of the harmful health effects of smoking, it has taken an active role in trying to limit and discourage cigarette smoking. See id. For instance, Congress has successfully passed several laws to regulate cigarette labeling and advertising on television, radio and other electronic media within the jurisdiction of the Federal Communications Commission (FCC). See id. Additionally, it has encouraged research and public awareness of the harmful effects of smoking. See id.

83 Pub. L. No. 89-92, 79 Stat. 282 (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)).

84 15 U.S.C. § 1331.

85 § 4, 79 Stat, at 283 (codified as amended at 15 U.S.C. § 1333 (1994)). Congress amended the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1984 to include the following warnings:

SURGEON GENERAL's WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

SURGEON GENERAL's WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

SURGEON GENERAL's WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

SURGEON GENERAL's WARNING: Cigarette Smoke Contains Carbon Monoxide.

Pub. L. No. 98-474, § 4(b), 98 Stat. 2203 (1984) (codified as amended at 15 U.S.C. § 1333(a)).

86 See id. 15 U.S.C. § 1334(b).

87 See id. § 1335(a). The 1984 amendment did not require manufacturers to identify the company, brand or the quantity of the ingredients found in each cigarette. See id. After reviewing the list of ingredients, the Secretary of Health and Human Services (HHS) must submit a report to Congress when he or she deems it appropriate or if Congress requests it. See id.

88 See id. § 1337.

89 Id. § 1341(a). The Act establishes six functions that the Secretary shall perform in administering the program:

  • (1) conduct and support research on the effect of cigarette smoking on human health and develop materials for informing the public of such effect;

  • (2) coordinate all research and educational programs and other activities within the Department of Health and Human Services … which relate to the effect of cigarette smoking on human health and coordinate, through the Interagency Committee on Smoking and Health … such activities with similar activities of other Federal agencies and of private agencies;

  • (3) establish and maintain a liaison with the appropriate private entities, other Federal agencies, and State and local public agencies respecting activities relating to the effect of cigarette smoking on human health;

  • (4) collect, analyze, and disseminate (through publications, bibliographies, and otherwise) information, studies, and other data relating to the effect of cigarette smoking on health, and develop standards, criteria, and methodologies for improved information programs relating to smoking and health;

  • (5) compile and make available information on State and local laws relating to the use and consumption of cigarettes; and

  • (6) undertake any other additional information and research activities which the Secretary determines necessary and appropriate to carry out this section.

Id. § 1341(a)(l)-(6)

90 See id. § 1341(c).

91 Pub. L. No. 91-222, 84 Stat. 87 (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)).

92 See 15 U.S.C. § 1335. The Public Health Cigarette Smoking Act makes it “unlawful to advertise cigarettes … on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.” Id.

93 See Schudson, supra note 27, at 211.

94 See id. The study, conducted two years after the advertising ban went into effect, also found that antismoking commercials were more powerful than tobacco advertisements in influencing consumer behavior. See Hamilton, James L., The Demand for Cigarettes: Advertising, the Health Scare, and the Cigarette Advertising Ban, 54 REV. ECON. & STAT. 401, 406 (1972)Google Scholar. Beginning in 1968, anti-tobacco commercials shared the airwaves with the tobacco advertisements and effectively decreased per capita consumption 530.7 cigarettes per year. See id. at 406.

95 See 15 U.S.C. § 1333(a).

96 Pub. L. No. 99-252, § 2, 100 Stat. 30, 30-31 (codified at 15 U.S.C. § 4401 (1994)).

97 See 15 U.S.C. § 4401(a). The Comprehensive Smokeless Tobacco Health Education Act (CSTHEA) also permits the Secretary to make grants to states to assist in the development and distribution of educational programs, materials and public service announcements, and to establish eighteen as the minimum age for the purchase of smokeless tobacco. See id.

98 See id. § 4402(a)(l)-(2). The CSTHEA requires manufacturers of smokeless tobacco to include one of the following three labels on their products:

WARNING: This Product May Cause Mouth Cancer

WARNING: This Product May Cause Gum Disease and Tooth Loss

WARNING: This Product is Not a Safe Alternative to Cigarettes

Id. § 4402(a)(1). Finally, the CSTHEA prohibits manufacturers of smokeless-tobacco products from advertising on television, radio and all other electronic mediums subject to the jurisdiction of the FCC. See id. § 4402(f).

99 For example, in 1987 Congress considered two bills that would have prohibited all tobacco advertising, distribution of tobacco samples and sports team sponsorships by tobacco companies. See Health Protection Act of 1987, H.R. 1532, 100th Cong. § 3; Health Protection Act of 1987, H.R. 1272, 100th Cong. § 3. In 1989, Congress considered two more bills that would have imposed the tombstone format on most tobacco advertisements and banned promotional items featuring tobacco brand names. See Children's Health Protection Act of 1989, H.R. 1493, 101st Cong. § 3; Protect Our Children from Cigarettes Act of 1989, H.R. 1250, 101st Cong. § 3. A year later, Congress considered the Tobacco Control and Health Protection Act, H.R. 5041, 101st Cong. §§ 3-10 (1990), which would have also imposed the tombstone format on most tobacco advertisements, prohibited cigarette advertisements within 1000 feet of schools, banned sports sponsorships and prohibited distribution of free samples. Finally, in 1993, Congress considered an amendment to the FDCA, 21 U.S.C. §§ 301-392 (1994), which would have given the FDA jurisdiction over cigarettes and other tobacco products and required FDA regulation of tobacco advertising. See Fairness in Tobacco and Nicotine Regulation Act of 1993, H.R. 2147, 103d Cong. § 5. In addition, Congress considered a bill that would have granted the HHS jurisdiction of tobacco advertising. See Tobacco Education and Child Protection Act, H.R. 3614, 103d Cong. §§ 4-6 (1993).

100 See Harder, supra note 82, at 404.

101 See Gleick, Elizabeth, Out of Mouths of Babes, TIME, Aug. 21, 1995, at 33, 33Google Scholar.

102 See Press Conference, supra note 26.

103 See Locke, David A., Counter Speech As an Alternative to Prohibition: Proposed Federal Regulation of Tobacco Promotion in American Motorsport, 70 IND. L.J. 217, 218 (1994)Google Scholar.

104 See Herbert, supra note 47, at 23A. A study conducted by the Campaign for Tobacco-Free Kids found a wide array of promotional items “guaranteed to appeal to children.” These included “Camel-Powered” toy cars; a set of “Smokin’ Joe's” trading cards; cigarette packs containing Joe Camel cartoons and play money that could be redeemed for prizes; and an auto racing scene that featured a design “very similar” to the Marlboro logo, but without the Marlboro name. See id.

105 See id. As the author notes, “Joe Camel debuted in 1988 and was an instant success. The first couple of years of the Joe Camel advertising campaign were accompanied by the first increase in teen-age smoking in a decade.” Id.

106 See Press Conference, supra note 26.

107 See Kids Mustn't Smoke, NEWSDAY, Aug. 14, 1995, at A18. Depending on what documents courts release as a result of the Liggett Group settlement, more convincing evidence may soon become available to buffet the company's admission that the industry targets underage youths. For now, however, researchers must rely on their own data to establish a link between advertising and teen consumption. A study conducted by the Campaign for Tobacco-Free Kids found that, for the vast majority of children and adolescents, Camel was the first cigarette they smoked. As former advertising executive William Novelli noted, “'They started with Joe.'” Herbert, supra note 47, at 23A.

108 See Ault, Alicia, Could This Be the End of an Era for Joe Camel?, 349 LANCET 1677, 1677 (1997)Google Scholar. Jodie Bernstein, director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, cited evidence found in recent FDA documents and said that “R.J. Reynolds has conducted one of the most effective advertising campaigns in decades. Joe Camel has become as recognizable to kids as Mickey Mouse.” Id.

109 See id.

110 See Ono, Yumiko & Ingersoll, Bruce, RJR Retires Joe Camel, Adds Sexy Smokers, WALL ST. J., July 11, 1997, at B1Google Scholar. Calling it a “marketing decision,” R.J. Reynolds said that it would “phase out” the cartoon character and replace him with the ‘“staid old dromedary'” that has appeared on Camel cigarette packs for decades.” Id. At the same time, the company unveiled a new Camel ad campaign built around the theme, “What you're looking for.” See id.; Catanoso, Justin, RJR: New Ads to Draw on Old, GREENSBORO NEWS & REC., July 11, 1997, at A1Google Scholar (discussing R.J. Reynolds's new advertising campaign). One such ad “shows a sexy woman puffing away as smoke curls up into the shape of a camel, with the tagline, ‘What you're looking for.'” Ono & Ingersoll, supra, at B1. William Novelli, president of the Campaign for Tobacco-Free Kids, sharply criticized the new advertising campaign, calling it “more alluring to kids than even Joe Camel.” Tobacco-Free Kids Campaign Sounds August Smoke Alarm on R.J. Reynolds Healthy Smoke, Sexy Cigarette Ad Campaigns, U.S. NEWSWIRE, Aug. 21, 1997, available in LEXIS, News Library, Usnwr File.

111 See Ono & Ingersoll, supra note 110, at B1. In addition, R.J. Reynolds must agree to conduct an antismoking campaign aimed at underage smoking and “file regular FTC reports on its share of the underage market.” See id.

112 See id.

113 See Shapiro, Eben, FDA Amassing Data in Effort to Gain Power to Regulate Cigarettes As Drug, WALL ST. J., Mar. 28, 1994, at A10Google Scholar; see also Ann Devroy & John Schwartz, FDA Given Power for Cigarette Rules—Clinton Seeks to Curb Teenage Smoking, WASH. POST, Aug. 10, 1995, at A1 (reporting that President Clinton, faced with the FDA's findings that nicotine is an addictive drug, gave the FDA power to regulate cigarettes).

114 See Shapiro, supra note 113, at A10.

115 See Regulation of Tobacco Products (Part 2): Hearings Before the Subcomm. on Health and the Env't of the Comm. on Energy and Commerce, 103d Cong. 17-18 (1995) (statements of Victor DeNoble and Paul Mele, former Philip Morris scientists).

116 See id. Philip Morris scientists explained to Congress that, in these experiments, Philip Morris used “exactly the same tests” that the National Institute on Drug Abuse used to determine whether a drug has a potential for abuse. See id. at 17. Of the three general tests to show potential addiction, self-administration, tolerance and physical withdrawal, the company's experiments showed that rats would both self-administer and develop tolerance to nicotine. See id. at 17-18.

117 Kessler et al., supra note 1, at 988. “[T]he evidence revealed that tobacco manufacturers design their products to provide consumers with pharmacologically active doses of nicotine.” Id.

118 See John Schwartz, Tobacco Officials Discussed Hiding Data, Memos Indicate, WASH. POST, Sept. 18, 1996, at A3. In their lawsuit against several major tobacco companies, the state of Minnesota and Blue Cross and Blue Shield of Minnesota cited several memos in which “tobacco company officials and researchers discussed the need to ‘destroy’ and ‘bury’ sensitive research documents.” Id. In one Philip Morris memo, nicotine researcher, William L. Dunn Jr., wrote the company's Director of Research, Thomas S. Osdene, that “[i]f the researcher ‘is able to demonstrate, as she anticipates, no withdrawal effects of nicotine, we will want to pursue this avenue with some vigor’ … . ‘If, however, the results with nicotine are similar to those gotten with morphine and caffeine, we will want to bury it.'” Id. Another handwritten memo, which appears to have been written by the same director of research, directed scientists at the company's German laboratory to send any important letters or documents to his home. See id. On receipt, he wrote, ‘“I will act on them & destroy.'” Id.

119 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 41,483 (1995).

120 See Widder, Pat, Big Tobacco Says It's No Longer Blowing Smoke, CHI. TRIB., Jan. 30, 1998, at 4Google Scholar, available in 1998 WL 2820007. On January 29, 1998, top executives from Philip Morris, R.J. Reynolds, Lorillard and U.S. Tobacco testified under oath before the House Commerce Committee and acknowledged that nicotine is addictive and plays a role in lung cancer. See id.; see also Kellman, Laurie, Tobacco Executives Acknowledge Nicotine is Addictive, ORANGE COUNTY REG., Jan. 30, 1998, at A20Google Scholar, available in 1998 WL 2610431 (stating that tobacco executives acknowledged that nicotine is addictive and causes health problems). Only Nick Brookes, Chairman and Chief Executive Officer of Brown & Williamson Tobacco Cos. demurred on the addictive qualities of tobacco, stating, ‘“I personally would not use that term.'” Kellman, supra, at A20. These admissions directly contradict the sworn testimony of seven tobacco company executives who, in 1994, told a congressional committee that they did not believe that nicotine is addictive or that tobacco products cause disease. See John Schwartz, Youth: Long a Focus in Tobacco Debate, WASH. POST, Jan. 15, 1998, at A19. The Liggett Group acknowledged that nicotine is addictive as part of its settlement agreement with 18 states. See Levin & Stolberg, supra note 36, at Al; see also Curriden, supra note 56, at 1A (stating how Bennett S. LeBow, Chief Executive Officer, Liggett Group, testified under oath in August 1997 that nicotine is addictive and causes cancer).

121 See Philip Morris Fights FDA Regulation, supra note 79, at A3.

122 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).

123 See Bigelow v. Virginia, 421 U.S. 809, 812-13 (1975) (holding that a Virginia statute that criminalized advertisements related to encouraging or obtaining abortions violated the First Amendment); see also Harder, supra note 82, at 413 (referring to the holding of Bigelow as a component of early commercial speech doctrine).

124 See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 773 (1976); see also Harder, supra note 82, at 413 (summarizing Virginia Pharmacy Board's holding).

125 See Virginia Pharmacy Bd., 425 U.S. at 765.

126 Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980).

127 See id. at 566.

128 See id. at 563.

129 See id. at 564.

130 See id.

131 See id.

132 See id. at 565.

133 Cf. id. at 564 (stating that “[i]f the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed“).

134 See Penn Adver., Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318, 1325 (4th Cir. 1995).

135 See Central Hudson, 477 U.S. at 566. Recall that the test involved in this type of inquiry is whether the asserted government interest that restricts commercial speech is substantial, “whether the regulation directly advances the governmental interest asserted[,] and whether it is not more extensive than is necessary to serve that interest.” Id.

136 Pub. L. No. 91-222, § 6, 84 Stat. 87, 89 (codified as amended at 15 U.S.C. § 1335 (1994)) (prohibiting the electronic advertisement of cigarettes and little cigars).

137 Cf. 15 U.S.C. § 1334(b) (1994) (“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes … .“). The Act does not contain any provisions making it a crime to direct tobacco advertising at minors. Indeed, the FDA's regulations would impose the first federal restrictions on tobacco advertising in nearly ten years. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396 (1996).

138 See Associated Press, supra note 49, at 1A.

139 See Gostin, Lawrence O. et al., FDA Regulation of Tobacco Advertising and Youth Smoking: Historical, Social, and Constitutional Perspectives, 277 JAMA 410, 413-14 (1998)Google Scholar. First, tobacco advertising and promotional campaigns do not explicitly advocate smoking by teenagers; and second, the advertisements reach a large proportion of adults. See id. at 414. In Coyne Beahm, the district court ruled that, although the FDA has the authority to regulate the sale and distribution of tobacco products as drugs and devices under the FDCA, that authority does not extend to placing restrictions on promotion and advertising of tobacco products. See 966 F. Supp. 1374, 1398-400 (M.D.N.C. 1997). The court did not address the tobacco industry's First Amendment arguments and, as a result, did not decide whether the regulations meet the Central Hudson test. See id. at 1400 n.33.

140 See Central Hudson, 447 U.S. at 564. Under the Central Hudson doctrine, the federal government may regulate commercial speech that concerns lawful activity and is not misleading, if it can assert a substantial interest in support of regulation and if it demonstrates that the regulation is no more extensive than necessary to serve that interest. See discussion supra notes 128-32. Although critics of the tobacco industry argue that tobacco advertising and promotional campaigns are “replete with images and text that are substantially misleading,” the Court has made clear that the government has a high burden of proof to demonstrate fraud or deception; simple “puffery” or exaggerated claims are insufficient. Gostin et al., supra note 139, at 414. It is therefore highly unlikely that the FDA could successfully argue that tobacco advertisements deserve no constitutional protection at all.

141 See Press Conference, supra note 26.

142 See Brody, Jane E., Study Finds Stunted Lungs in Young Smokers, N.Y. TIMES, Sept. 26, 1996, at B10Google Scholar.

143 See id. “A previous study among the same group of children had revealed high rates of respiratory illness in those who smoked or who were exposed to smoke because one or both of their parents did so.” Id.

144 See Penn Adver., 63 F.3d at 1318-19.

145 See id.

146 See id. at 1325-26. The court examined the constitutionality of Baltimore Ordinance 307, which banned cigarette advertising on billboards located in “publicly visible locations” of Baltimore. See id. The city enacted the ordinance to advance article 27, sections 404 and 405A of the Maryland Annotated Code, which prohibits the consumption of cigarettes by minors. See id. at 1321.

147 See id. at 1325-26.

148 See Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563-64 (1980).

149 See Kathryn Ericson, Philip Morris Proposes Federal Tobacco Restrictions, But Only if FDA Butts Out, WEST's LEGAL NEWS, May 16, 1996, available in 1996 WL 265176. In a May 15 news release, Philip Morris Senior Vice President Steven Parrish argued that Liquormart “‘[m]akes it clear that the FDA's proposed advertising restrictions are blatantly unconstitutional.'” Id.

150 116 S. Ct. 1495, 1501 (1996).

151 See id. at 1507.

152 Id. at 1509 (citing Central Hudson, 447 U.S. at 564).

153 Id.

154 See id. at 1501.

155 See Schwartz, John & Harris, John F., Clinton to Sign Plan to Curb Teen Smoking, WASH. POST, Aug. 21, 1996, at A1Google Scholar.

156 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 44,617 (1996).

157 See Liquormart, 116 S. Ct. at 1501.

158 See 61 Fed. Reg. at 44,617. Tobacco companies may advertise their products in any place not located within 1000 feet of a school, social service agency, church or public library. See id.

159 See Posados de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 341-42 (1986). In Posados, the Puerto Rico legislature banned all casino advertising aimed at Puerto Rico residents, but allowed casino advertising aimed at tourists. See id. at 335. The Court applied the Central Hudson test and upheld the ban. See id. at 344. The Court found that, although the advertising was entitled to First Amendment protection, the legislature had a substantial interest in reducing gambling among its residents because of the correlation between gambling, local organized crime and prostitution. See id. at 340-41. The Court deferred to the legislature's judgment in regard to prongs three and four of the Central Hudson test (that the restrictions directly advanced the government interest and that no less restrictive alternative would accomplish the legislature's goal). See id. at 341-44.

160 See 966 F. Supp. at 1379 (adjudicating plaintiffs’ summary judgment motion claiming that Congress improperly retained authority to regulate tobacco products and that the FDCA does not authorize the FDA to regulate tobacco products as “drugs” or “devices“).

161 See Harder, supra note 82, at 415-16 (stating that “the question is whether the FDA has the power, under the FDCA, to ban all sales and promotion of tobacco products,” and if it does have the power, “[a court] may also find that the FDA has the power, under Posados, to regulate the promotion and sale of tobacco products“).

162 See Penn Adver., Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318, 1325 (4th Cir. 1995). Following its decision in Liquormart, the Court granted Penn Advertising's petition for writ of certiorari. Penn Adver., Inc. v. Schmoke, 116 S. Ct. 2575, 2575 (1996). The Court vacated the judgment and remanded the case for reconsideration in light of the Liquormart decision. See id. at 2575. On remand, the Fourth Circuit affirmed the original district court decision, holding that the ordinance merely restricted time, place and manner of cigarette and alcohol advertising and did not violate the First Amendment. See Penn Adver., Inc. v. Mayor and City Council of Baltimore, 101 F.3d 332, 333 (4th Cir. 1996) (applying the reasoning of Anheuser-Busch. Inc. v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996)).

163 See Pollay, Richard W. et al., The Last Straw? Cigarette Advertising and Realized Market Shares Among Youths and Adults, 1979-1993, J. MARKETING, April 1996, at 1, 11Google Scholar. The study examined tobacco industry advertising expenditures between 1979 and 1993 for nine different cigarette brands and compared the expenditures with the nine cigarette brands’ market shares among adults and teenagers for five of the years in the 1979-1993 study period (1979, 1986, 1989, 1992 and 1993). See id. at 6-7. The information was derived from findings from data compiled by the CDC, the Gallup Poll and various trade publications. See id. at 7.

164 Teen-Agers Are More Responsive to Cigarette Ads, Study Says, N.Y. TIMES, Apr. 4, 1996, at B11 [hereinafter Teen-Agers Are More Responsive] (discussing Pollay's study). According to the study, Marlboro's 12.7% share of the cigarette advertising market has enabled the brand to win 59.5% of the youth smoking market, compared to only 22% of the adult market. See Pollay et al., supra note 163, at 8. Camel, with a 4.9% share of the cigarette advertising market, has 8.7% of the youth market and 3.7% of the adult market. See id. Finally, Newport, with a 4.7% share of the advertising market, captured 11.1% of the youth market, compared to 3.8% of the adult market. See id.

165 See Pollay et al., supra note 163, at 10, 13. The study found that advertising sensitivity among teenagers was three times higher than among adults. See id. at 1. Whenever a brand increased its advertising expense by 10%, for example, the brand's share of adult smoking grew by 3%, but its share of teen-age smokers increased by 9%. See Teen-Agers Are More Responsive, supra note 164, at B11.

166 See Pollay et al., supra note 163, at 11; Teen-Agers Are More Responsive, supra note 164, at B11 (discussing Pollay's article).

167 Teen-Agers Are More Responsive, supra 164, at B11 (quoting Pollay).

168 See Kessler et al., supra note 1, at 991. In Texas, two fourth-graders reported that they could easily buy cigarettes from a vending machine located in a local bowling alley. See Jennifer Packer, Lawmakers Listen to Youths’ Plea to Curb Cigarette Sales, FT. WORTH STAR-TELEGRAM, Mar. 20, 1997, at A19. The cigarette packs were next to the M & M's in the machine and the machine itself was near children's video games. See id. Texas's Senate is currently considering Bill 55, which would complement the FDA regulations by banning tobacco products from vending machines in areas frequented by minors. Id.

169 See Patton v. City of Marlborough, 615 N.E.2d 582, 583 (Mass. 1993). The court upheld a municipal regulation that limited operation of cigarette vending machines to certain locations where access by minors was restricted. See id. The municipal regulation at issue limited youths’ easy access to tobacco products by restricting cigarette vending machines to certain locations and requiring installation of lock-out devices on these machines. See id.

170 See Penn Adver., Inc. v. Mayor and City Council of Baltimore, 63 F.3d 1318, 1325 (4th Cir. 1995).

171 See Penn Adver., Inc. v. Mayor and City Council of Baltimore, 862 F. Supp. 1402, 1404 (D. Md. 1994).

172 See Ludwikowski, Mark R., Proposed Government Regulation of Tobacco Advertising Uses Teens to Disguise First Amendment Violations, 4 COMMLAW CONSPECTUS 105, 115 (1996)Google Scholar.

173 See Penn Adver., 63 F.3d at 1325.

174 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 44,469 (1995).

175 See Ludwikowski, supra note 172, at 115 (arguing that by restricting tobacco advertising in magazines, the government is “[e]ffectively restricting the up to eighty-five percent adult readers of those magazines from receiving the information”).

176 See 61 Fed. Reg. at 44,469 (stating that cigarette advertising “consistently used [color and imagery] to make advertisements compelling and attention getting” for adults as well as children); see also Ludwikowski, supra note 172, at 111 (stating that “the use of cartoons in advertising is not rare, and at times, it targets adults”).

177 See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647 (1985). The Court recognized that “use of illustrations or pictures in advertisements serves important communicative functions.” Id. The Court held that commercial illustrations were protected under the First Amendment because, although they are nonverbal, such communications “serve to impart information.” Id.

178 See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1505 (1996) (plurality opinion).

179 See 61 Fed. Reg. at 44,396.

180 See id. at 44,468-69.

181 See Liquormart, 116 S. Ct. at 1505; Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312-13 (4th Cir. 1995); 61 Fed. Reg. at 44,472 (stating that “a plurality of the Supreme Court reemphasized that commercial speech is protected because of the informational value.”).

182 See 61 Fed. Reg. at 44,472.

183 See Kessler et al., supra note 1, at 992.

184 See id.

185 See 61 Fed. Reg. at 44,396.

186 See Ludwikowski, supra note 172, at 115.

187 See, e.g., Patton v. City of Marlborough, 615 N.E.2d 582, 583 (Mass. 1993) (finding that Take Five Vending, Ltd. v. Town of Provincetown, 615 N.E.2d 576 (Mass. 1993) is controlling and supports a ban on vending machines in locations accessible to minors despite the use of “lock-out” devices).

188 See Kristen Delguzzi, Cigarette Machine Ban Spares No Bowling Alley, CINCINNATI ENQUIRERER, Aug. 24, 1996, available in 1996 WL 2256537. The author discusses the potential impact of the FDA's partial ban on vending machines, which would eliminate vending machines from places like bowling alleys, waffle houses and local restaurants, where there are no age restrictions. See id. The article suggests that any impact on the adult market will be minimal. See id. Use of the vending machine in one bowling alley is “sporadic compared with years past” and the Amusement & Music Operators Association (AMOA) estimates that 91% of cigarette machines are already located in adult-only businesses. See id. Further, the AMOA estimates that less than two percent of cigarette sales nationwide come from vending machines. See id.

189 See Manning, Joe, Kids Find It Easy to Buy Cigarettes, MILWAUKEE J. SENTINEL, Feb. 26, 1996, at 4Google Scholar, available in 1996 WL 7833486. According to a study conducted by the Tobacco Control Program in the Wisconsin Division of Health, “children were successful in purchasing cigarettes from vending machines 75% of the time, compared to 39% for over-the-counter purchases from clerks.” Id. In addition, the study showed that “[m]ost merchants were not in compliance with state laws requiring display of age-of-sales regulations; placement of the machines in plain view and control of employees and inaccessibility of machines to the public when the businesses were closed.” Id.

190 See 61 Fed. Reg. at 44,441 (discussing reasons why a total ban on vending machines was not required). Although critics have suggested the use of locking devices, laws requiring locking devices have proved ineffective in decreasing smoking among children. See id. Moreover, the Florida Atlantic University Department of Exercise/Wellness Education conducted studies of vendor compliance with laws enacted to prevent minors from purchasing cigarettes from vending machines. See Accessibility to Minors of Cigarettes from Vending Machines—Broward County, Florida, 45 MORBIDITY & MORTALITY WKLY. REP. 1036, 1038 (1996). Researchers directed minor participants to first attempt to obtain change from a vendor to use in a cigarette machine. See id. at 1036. If no vendors were present, the minors went directly to a vending machine. See id. The study found that 33% of the minors were successful in their attempts to purchase cigarettes from vending machines. See id. at 1037. Of that 33%, 88% were able to purchase cigarettes from vending machines after they received change from the vendor. See id. Although the study did not include underage access to machines with locking devices, the evidence is clear that despite state laws, vendors are willing to facilitate underage purchases of cigarettes from vending machines. In addition, at least one court has rejected the argument that a law prohibiting vending machines is unconstitutional because the same result (restricted access to children) could be achieved with locking devices. See Take Five Vending, Ltd. v. Town of Provincetown, 615 N.E.2d 576, 581-82 (Mass. 1993) (finding that equal protection was not violated because the bylaw prohibiting cigarette vending machines furthered a legitimate state interest by promoting public health goals). Absent evidence that voters acted arbitrarily or irrationally, the judiciary may not substitute its independent judgment for that of the legislature in areas of practical administration of public health laws. See id. at 582.

191 See 61 Fed. Reg. at 44,508

192 See Kessler et al., supra note 1, at 992 (stating that the black and white, text-only restriction “preserves the textual information for adult smokers while at the same time eliminating the colorful imagery that makes advertising appealing to children and adolescents”).

193 See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312-13 (4th Cir. 1995) (explaining that the basis for First Amendment protection of commercial speech derives from its information function), vacated and remanded, 116 S. Ct. 1821 (1996) (instructing U.S. Court of Appeals to reconsider in light of 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996)), readopted in 101 F.3d 325, 327 (4th Cir. 1996); see also Liquormart, 116 S. Ct. at 1504 (plurality opinion) (reemphasizing that commercial speech is protected solely for its informational value).

194 See 61 Fed. Reg. at 44,513.

195 See Harder, supra note 82, at 421-22 (arguing that promotional activities constitute various forms of commercial speech and therefore, are protected by the First Amendment “only to the extent that the government does not have a substantial interest in restricting that speech”).

196 See Ludwikowski, supra note 172, at 115.

197 See GROWING UP TOBACCO FREE, supra note 23, at 110. The tobacco industry spends a whopping 40% of its total marketing expenditures on promotional and specialty items, such as Camel Coupons and Marlboro Miles. See id. at 108. Adolescents can exchange the coupons for T-shirts, caps and other items that bear the company's logo or brand name. See id. at 110. Critics argue that the use of promotional items encourages young people to smoke by forcing the logos and brand names “deeper into the conscious and semi-conscious reality of teens.” Lester, Kathleen J., Cowboys, Camels, and Commercial Speech: Is the Tobacco Industry's Commodification of Childhood Protected by the First Amendment?, 24 N. KY. L. REV. 615, 632 (1997)Google Scholar. This particular marketing technique also provides the tobacco industry with a way in which to advertise its product while circumventing federal labeling requirements. See id.

198 See Lester, supra note 197, at 660. The author proposes that the regulations may be constitutional because they do not focus on the message of an advertisement, but rather on the way in which it is conveyed. See id. The Supreme Court has upheld time, manner and place restrictions on public protests to further a significant government interest in education. See Grayned v. City of Rockford, 408 U.S. 104, 115-17 (1972). These restrictions effectively prevented protesters from picketing the school when most people were inside. See Lester, supra note 197, at 660. “Like the restrictions in Greyned [sic], the FDA regulations still permit the message to be conveyed, even if it is not in a way that the industry favors.” Id.

199 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 44,509 (1996); see also Lester, supra note 197, at 660 (describing the content that can be advertised by tobacco companies).

200 See Lester, supra note 197, at 624.

201 See 61 Fed. Reg. at 44,527.

202 See id.

203 See GROWING UP TOBACCO FREE, supra note 23, at 112. For instance, during the 1989 Marlboro Grand Prix, the Marlboro logo could be seen for 46 of the 94 minutes of the total broadcast time. See id. Cigarettes continue to be promoted on television despite the ban on such promotions. See Blum, Alan, The Marlboro Grand Prix: Circumvention of the Television Ban on Tobacco Advertising, 324 NEW ENG. J. MED. 913, 915 (1996)Google Scholar.

204 See Carchman, Susan H., Should the FDA Regulate Nicotine-Containing Cigarettes? Has the Agency Established a Legal Basis and, If Not, Should Congress Grant It?, 51 FOOD & DRUG L.J. 85, 136-37 (1996)Google Scholar.

205 See Ludwikoski, supra note 172, at 116.

206 See id. at 106 (describing the passage of the FCLAA in 1965, which required antismoking advertising); see also 15 U.S.C. § 1341(a)(1)—(6) (1994) (detailing the requirements of an educational program to inform the public of the dangers of smoking). However, the author fails to cite convincing evidence that antismoking advertisements reduce the numbers of children and adolescents who smoke. See id. at 116. Further, the author cites several cases of municipalities that enacted successful programs to decrease underage smoking. See, e.g., id. at 115-16. Unfortunately, programs that work in one part of the country may not work in another, and the FDA cannot implement an effective national program in every area. See id. at 116-17.

207 See Schudson, supra note 27, at 211 (citing Hamilton, James L., The Demand for Cigarettes: Advertising, the Health Scare, and the Cigarette Advertising Ban, 54 REV. ECON. & STAT. 401, 408 (1972)Google Scholar, which found that anti-cigarette advertising from 1968-1970 decreased per capita consumption 507 cigarettes per year). However, cigarette ads were not banned during that period, as they are now. See supra notes 91-92 and accompanying text (discussing the PHCSA which banned tobacco advertising on television and radio).

208 See Schudson, supra note 27, at 218-19 (discussing this effect as being caused by the “necessarily paternalistic or preachy” nature of public service announcements, in contrast to the “flatter[y]” or enticements of commercial advertising). In addition to the obstacles counteradvertising faces, discussed infra Part IV, the major problem with the counter-advertising strategy is how to fund it. A counter-advertising campaign would require over $200 million to match even a tenth of the expenditures devoted to commercial advertising. See KENNETH E. WARNER, SELLING SMOKE: CIGARETTE ADVERTISING AND PUBLIC HEALTH 93 (1986).

209 See Hamilton, James L., The Demand for Cigarettes: Advertising, the Health Scare, and the Cigarette Advertising Ban, 54 REV. ECON. & STAT. 401, 406 (1972)Google Scholar (finding that antismoking commercials decreased cigarette consumption 5.6 times more than the amount by which advertising increased consumption); Schudson, supra note 27, at 222.

210 See Schudson, supra note 27, at 222.

211 Seeid. at 218.

212 See id.

213 Id.

214 See id.

215 See id.

216 See id. at 218-19.

217 See supra Part III.A.

218 See supra, Part III.B (discussing how the tobacco companies’ new advertising efforts in response to the advertising ban might have actually increased the number of teens who smoked).

219 See WARNER, supra note 208, at 93-94 (suggesting that these numbers could exceed available funds unless a portion of the federal excise tax are earmarked to pay for the campaign).

220 See Ludwikowski, supra note 172, at 116. Only Congress has the power to levy taxes. See U.S. CONST, art. I, § 8, cl. 1. Under the Internal Revenue Code, Congress expressly authorized the Internal Revenue Service to implement tax collection for the sale of cigarettes and other forms of tobacco. See I.R.C. § 5701(a)-(b),(e) (1994). In contrast, Congress failed to grant the FDA similar powers to collect taxes under the FDCA. See 21 U.S.C. §§ 371, 393. Therefore, without prior congressional approval, an excise tax is not a viable alternative where FDA regulation is concerned.

221 See Let Congress Act on Smoking Curbs, GREENSBORO NEWS & REC, Aug. 12, 1995, at A8. The author suggests forcing the tobacco industry to pay for an antismoking campaign through taxation. See id. However, in Canada, where cigarettes cost $5 a pack, black markets began to thrive because of the excise tax imposed by the Canadian government. See id. Although the author suggests that the United States has not reached that point, the danger of diminishing returns in punitive tobacco taxation is a real threat and it is unclear at what point black markets would begin to appear. See id.

222 See Jason, Leonard A. et al., Active Enforcement of Cigarette Control Laws in the Prevention of Cigarette Sales to Minors, 266 JAMA 3159, 3160-61 (1991)Google Scholar (studying tobacco control legislation that was patterned after the town's liquor control laws). The town of Woodridge, Illinois, issued merchant sales licenses and followed up violations with warnings or fines, and cited minors for possession of cigarettes. See id. at 3160. Within 18 months, illegal merchant sales decreased from 70% to less than 5%. See id. Adolescent cigarette use was reduced by over 50%. See id.

223 See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 41,396, 44,419 (1995). The FDA issued its proposed regulations in August 1995 and accepted public comment until January 1996. See id. at 44,417. One individual wrote that in his state “[t]here is absolutely no enforcement of the laws banning sales of tobacco to minors.” Id. at 44,419.

224 See id. (noting that the regulations also create enforceable obligations where private group efforts and voluntary codes do not).

225 See id. “Under section 1926 of the Public Health Service Act [PHSA] … States are expected to enact and to enforce laws to prohibit any manufacturer, retailer, or distributor of tobacco products from selling or distributing such products to any individual under age 18.” Id. (citing 42U.S.C. §300x-26(1994)).

216 See id. at 44,419-20.

227 See id. at 44,420. Section 521(b) of the PHSA allows the FDA to exempt states from the regulation's preemptive effects. See id.

228 See WARNER, supra note 208, at 46-47.

229 See id. at 46. The code included bans on advertising in youth publications such as comic books, school newspapers and broadcast programs “directed primarily to persons” under the age of 21. See Schwartz, supra note 120, at A19.

230 See WARNER, supra note 208, at 46-47 (quoting the code); Schwartz, supra note 118, at A3 (same).

231 Schwartz, supra note 118, at A3 (quoting the code).

232 See GROWING UP TOBACCO FREE, supra note 23, at 119-20 (noting that Marlboro, Newport and Camel, which are the most popular brands among youths, maximize a considerable amount of image-based advertising). Critics charge that the voluntary code was, in reality, a “smoke screen” that allowed the industry to advertise as it wanted “while proclaiming its adherence to lofty ideals.” Schwartz, supra note 120, at A3

233 GROWING UP TOBACCO FREE, supra note 23, at 129.

234 Smolowe, Jill et al., Sorry, Pardner: Big Tobacco Fesses Up and Pays Up—$368.5 Billion, but Congress Must Approve the Deal, TIME, June 30, 1997, at 24, 24Google Scholar. Florida Attorney General Bob Butterworth joined Moore in lauding the settlement, boasting that “'the Marlboro Man will be riding into the sunset on Joe Camel.'” Richard Benedetto, Calls for Changes in Tobacco Deal May Stamp Out Approval, USA TODAY, Sept. 15, 1997, at 1A.

235 See Smolowe et al., supra note 234, at 24. Under the terms of the agreement, manufacturers will pay $10 billion up front to be followed by annual allotments that will grow from $8.5 billion to $15 billion over the first five years, then hold steady. See id. at 26.

236 See Burritt, Chris, Fallout from the Tobacco Settlement, ATLANTA J. & CONST., June 22, 1997, at A14Google Scholar, available in 1997 WL 3977741.

237 See Smolowe et al., supra note 234, at 25. Forty states filed suit against the industry to recover Medicaid expenses incurred for smoking-related illnesses. See id. at 27. In addition, at least seventeen class action suits against the industry are currently pending. See id.

238 See id.; Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374, 1385, 1397 (M.D.N.C. 1997) (contesting FDA's jurisdiction to regulate the tobacco industry as well as the agency's right to restrict advertising and promotion of tobacco products).

239 The tobacco companies will sign consent decrees with all states agreeing to this portion of the settlement to protect against further First Amendment challenges or congressional opposition to these provisions. See Associated Press, Terms of the Deal, FLA. TODAY, June 21, 1997, at 10A, available in 1997 WL 11481562. The proposed settlement outlaws outdoor cigarette advertising, cigarette vending machines, cigarette promotions in sporting activities such as the NASCAR circuit and cigarette ads using human images of cartoon characters, such as Joe Camel and the Marlboro Man. See Testimony: Tobacco Settlement Review, 105th Cong. (1997), available in 1997 WL 11234936 (statement of Stanley M. Chesley). In addition, the industry will submit to FDA regulation of nicotine levels in cigarettes, although the FDA could not ban nicotine for at least 12 years. See Benedetto, supra note 234, at 1A. Finally, the settlement contains several other provisions, including: cigarette prices would increase by at least 50 cents a pack to finance the settlement and deter youth smoking; the industry would face financial penalties if youth smoking does not decline 30% in five years, 50% in seven years, and 60% in 10 years; products and ads would carry tougher warning labels; smokers would be eligible for quit-smoking treatments financed by the tobacco industry; outright smoking bans would be implemented in most workplaces; and the industry's lobbying group, the Tobacco Institute, would disband. See id.

240 See Benedetto, supra note 234, at 1A.

241 See id.

242 See id.; Joseph A. Califano, Jr., Tobacco Keeps Fighting, WASH. POST, Sept. 7, 1997, at C7; Harry Levens, Smoking Deal Packs Carton of Irony: Settlement Would Keep Tobacco Firms Healthy, ST. LOUIS POST-DISPATCH, June 29, 1997, at 1A, available in 1997 WL 3351095. The American Trial Lawyers Association (ATLA) points out that such a ban is a “grant of full immunity,” because no individual plaintiff or attorney could afford to sue the well-financed tobacco industry for compensatory damages alone. See Califano, supra, at C7. In addition, ATLA argues that eliminating the possibility of lawsuits from aggressive plaintiffs’ lawyers would destroy a critical means of policing the industry. See id.

243 See Smolowe et al., supra note 234, at 27.

244 Wilke, John R. & Taylor, Jeffrey, FTC Criticizes Proposed Tobacco Accord, WALL ST. J., Sept. 23, 1997, at A3Google Scholar. An FTC study found that the settlement could boost industry profits from $36 billion to almost $123 billion over the life of the settlement, depending on whether industry tax exemptions are enacted. See id. The report also said that the amount tobacco companies pay to the public will be far less than the agreed on $368.5 billion because such payment is tied to annual sales, which are expected to decline as consumer prices increase. See id.; see also Reuters, New Report: Tobacco Pact Could Push Profits Way Up, ORLANDO SENTINEL, Sept. 23, 1997, at A5, available in 1997 WL 13293749 (stating that the tobacco industry may only pay $207 billion over the next 25 years).

245 See Wilke & Taylor, supra note 244, at A3.

246 See Taylor, Jeffrey, Clinton Presses Tougher Deal on Tobacco, WALL ST. J., Sept. 18, 1997, at A3Google Scholar. While the President declined to endorse the present agreement, he emphasized his commitment to working out a new proposal. See id. The President did say that ‘“[w]e're not rejecting what the attorneys general did, we're building on it,'” and ‘“[w]e have moved from confrontation and denial and inertia to the brink of action.'” Id.

247 See id. This would more than double the cost of the original settlement. See Harris, John F. & Mintz, John, Clinton Stance May Alter Tobacco Deal, WASH. POST, Sept. 18, 1997, at A1Google Scholar. The $1.50 per pack figure would be a combination of upfront industry payments and penalties the companies would pay if teen smoking does not decline. See Taylor, supra note 246, at A3. Unlike the original proposal, which would cap such penalties at $2 billion a year, the President's proposal calls for non-tax-deductible, noncapped, escalating penalties to give the industry an incentive to reduce youth smoking. See id. Tobacco executives are particularly dismayed by the non-tax-deductible provision. See Harris & Mintz, supra, at A1. Industry analysts predict that this provision could cost tobacco companies tens of billions of dollars. See id. The companies have instead consistently demanded that all payments be deductible from corporate income taxes. See id.

248 See Harris & Mintz, supra note 247, at A1. Under the original settlement, although the FDA could regulate the tobacco industry, it could not ban nicotine for at least twelve years. See Benedetto, supra note 234, at A2.

249 See Benedetto, supra note 234, at 1A; see also Tobacco Field Clinton: Endorses National Tobacco Settlement, AM. POL. NETWORK-AM. HEALTH LINE, Jan. 20, 1998, at 16, available in Westlaw 1/20/98 APN-HE 166 [hereinafter Tobacco Field]. During one of his weekly radio addresses, the President reiterated his support for the proposed settlement between the state attorneys general and the tobacco industry. See id.; Taylor, supra note 246, at A3 (discussing the President's proposed changes to the proposed tobacco settlement and the responses of the tobacco industry and Congress to these changes). “'Tobacco has a very high return per acre, and so it's not a simple thing,'” said the President. Id. ‘“You can't just say to a tobacco farmer, “Go plant soybeans,” even if the soil will hold them.'” Id.

250 See Harris & Mintz, supra note 247, at A1. Under the original settlement, the industry would receive immunity from punitive damages for past acts and protection from future class action and other group lawsuits. See id. Although the President neither endorsed nor rejected these provisions in his announcement, White House Press Secretary Mike McCurry recently said that the President may support immunity from civil liability. See id.; Tobacco Field, supra note 249, at 16. However, McCurry also said that the President will not support any legislation that focuses narrowly on reducing teen smoking, emphasizing that “nothing [is] going to work unless you have a comprehensive approach.” Id.

251 See Bob Hohler, Clinton Offers Own Plan on Tobacco, BOSTON GLOBE, Sept. 18, 1997, at A3 (stating that President Clinton conceded that the tobacco settlement had no chance of passing Congress in 1997). The House Commerce Committee chairman, Representative Thomas Bliley of Virginia, criticized the President's plan for its lack of specificity and said that it ‘“eliminated what little chance we had of getting an agreement enacted [in 1997], and makes it far more difficult for us to do so at all.'” Id. Oklahoma Senator Don Nickles, the Senate's Republican point man, was equally dubious that a legislative solution was possible. See John F. Harris & John Mintz, Tobacco Dispute Enters a New Phase, WASH. POST, Sept. 18, 1997, at A1, available in 1997 WL 12887209. Nickles remarked that given the complexity of the issue and the number of committees involved, ‘“[t]o make this happen … would take a full-court press for many months'” by the President and Congress. Id. ‘“We could decide to do nothing; we could decide to do pieces of it.'” Id.

252 See Charles Pope & Andrew Moulton, Clinton Calls on Congress to Rewrite $368.5 Billion Tobacco Deal, STAR-TELEGRAM (Fort Worth), Sept. 18, 1997, at A23. Senator Nickles said that the Senate, at least, will not rush to approve a settlement. See id. ‘“I don't feel compelled to pass this in two months or even twelve months’ … . ‘We've never had an outside group create a proposal and dump it on Congress’ lap and say, “Now pass this.'”” Id. In addition, following the disclosure of documents showing the industry targeted children, even once staunch industry allies such as Representative Bliley questioned when and whether Congress would pass comprehensive tobacco legislation. See Widder, supra note 120, at 4. During the testimony of the tobacco industry's top executives before the House Commerce Committee, Bliley chastised the industry and said that the release of the documents “'have shaken my confidence that [the] companies care about the truth.'” Id. Bliley said that before the committee would consider any legislation, it “'must be confident that [the tobacco companies] are telling us the truth—the whole truth,”’ adding, ‘“[f]our years ago, I was willing to give you companies the benefit of the doubt’ … . ‘Today the burden is on you.'” Id.

253 See Saundra Torry, McCain Adds Yearly Damages Cap to Tobacco Bill, WASH. POST, Mar. 31, 1998, at A07, available in 1998 WL 2476271. Senator John McCain's bill would phase in a $1.10 per pack licensing fee on cigarettes over the next five years, give the federal government specific powers to regulate nicotine and tobacco and restrict advertising aimed at youths. See Neikirk, William, Sen. McCain Pushes Tobacco Deal but Middle Ground May Prove Difficult to Reach, CHI. TRIB., Mar. 31, 1998, at 3Google Scholar, available in 1998 WL 2840785; Alissa J. Rubin, GOP Offers Own Approach to Getting Tough on Tobacco Congress: Industry Balks at Bill That Would Give It Little Protection Against Suits, Raise Price of Cigarettes by $1.10 a Pack, L.A. TIMES, Mar. 31, 1998, at A9, available in 1998 WL 2413468. In addition, the measure calls on the industry to reduce teenage smoking by 30% over five years and 60% over 10 years, imposing harsh penalties if the industry fails. See US Lawmakers Vow to Pass Tobacco Bill As Industry Slams Measure, AGENCE FRANCEPRESSE, Mar. 31, 1998, available in 1998 WL 2251978 (stating how the tobacco industry could be forced to pay up to $240 million for every percentage point short of the reduction targets, if the companies miss the targets by 10 percentage points or more).

254 See Neikirk, supra note 253, at 3. Under these provisions, the tobacco industry would receive almost none of the protections it sought in last year's settlement. As a result, the industry has already threatened to disavow its previous commitments. See Rubin, supra note 253, at A9. Industry lawyer J. Phil Carleton remarked that “‘[t]he industry agreed to these provisions only because they were part of a balanced compromise achieved in last June's proposed resolution’ … . ‘This balance does not exist in the committee's plan and therefore the industry cannot and will not give its assent to it.'” Id. Carleton's comments mirror those of Brown & Williamson chairman Nick Brookes, when he testified before the House Commerce Committee earlier this year. During his testimony, Brookes spoke for himself and other industry executives when he told Congress that “‘[w]e cannot agree to any legislation that does not include the limited common-sense civil liability protections.'” Kellman, supra note 120, at A20. However, Democratic Congressman Henry Waxman, considered by many to be the House's leading tobacco industry critic, angrily replied that, ‘“Our goal must be to pass legislation that protects our children’ … . ‘We don't need the tobacco industry's blessing to do this. We don't even need their agreement. All we need is the political will to do what's right.'” Id. Although Waxman has declined to rule out the possibility of granting the industry immunity, he made clear that the question should be settled only after Congress examines further evidence of the industry's past behavior. See Waxman Vows Continued Pursuit of Tobacco Documents, CONGRESS DAILY, Jan. 15, 1998, available in 1998 WL 6604563.

255 See US Lawmakers Vow to Pass Tobacco Bill, supra note 253.

256 See Torry, supra note 253, at A07. The White House, key Senate democrats and public health advocates offered “mixed reviews” of McCain's bill. See id. Criticism of the measure varies. For example, White House Chief of Staff Eskine Bowles gave the bill qualified praise, saying it creates “'a foundation for further action but … has room for real improvement.'” Rough Draft on Tobacco, WASH. POST, Mar. 31, 1998, at A16, available in 1998 WL 2476205. Bowles said that penalties for failing to reduce teenage smoking are too weak and that the bill needed to be “significantly strengthened” before the President would endorse it. See id.; US Lawmakers Vow to Pass Tobacco Bill, supra note 253. Many members of Congress were equally cautious in their assessment of the bill. Senators Ron Wyden (D-Ore.) and John F. Kerry (D-Mass.), both members of the Commerce Committee, applauded McCain's efforts, but said they would seek to make changes. See Rubin, supra note 253, at A9. For example, Kerry made clear that he would not support the bill if it included legal protections that were “too broad.” See Torry, supra note 253, at A07. Senator Kent Conrad (D-N.D.) criticized the bill for failing to raise cigarette prices high enough. See id. In addition, former U.S. Surgeon General Koop, viewed by many as a key public health expert on tobacco, blasted the bill because, “‘[i]ts programs to reduce the number of children who smoke are too weak.”’ Rubin, supra note 253, at A9. Finally, even if the Senate approves tobacco legislation, House Republicans remain divided over which approach to take with their own version. Asked if the House would produce tobacco legislation this year, one congressman, Billy Tauzin (R-La.), said he doubted it because “‘[t]he middle will have a hard time holding [onto] this thing.'” Neikirk, supra note 253, at 3 (alteration in original).

257 See Kessler et al., supra note 1, at 992; GROWING UP TOBACCO FREE, supra note 23, at 105-06 (discussing the trends in cigarette marketing and advertising and their impact on adolescents).