Why the FDA's New Cigarette Ad Ban Is a Load of Old Smoke

The FDA's new ban on certain types of cigarette advertising will likely be met with a shrug by Big Tobacco -- most of the restrictions have been in place since 1998, when the industry signed a "master settlement agreeement" to end litigation in return for restrictions on marketing and compensation for cancer victims.

Rather than being a show of muscle, the new rules arguably underscore how feeble the FDA could be when it comes to overhauling cigarette advertising. The "new" rules will:

• Prohibit tobacco brand name sponsorship of any athletic, musical, or other social or cultural event, or any team or entry in those events.
• Prohibit gifts or other items in exchange for buying cigarettes or smokeless tobacco products.
• Prohibit the sale or distribution of items, such as hats and tee shirts, with tobacco brands or logos.
• Require that audio ads use only words with no music or sound effects.
• Prohibit the sale of "loosies" -- or boxes of fewer than 20 cigs.

The tobacco industry has found that advertising is the government's weak spot when it comes to restricting what cigarette brands can do. The FDA admits this in today's rulemaking notice, where it says that a hoped-for ban on billboards near schools probably won't happen. The government is hobbled by a Supreme Court ruling, Lorillard Tobacco Co. v. Reilly, which struck down a blanket ban on cigarette billboards near schools because it was not narrowly tailored enough. While the government has a right to protect kids' health, it must do so without unfairly infringing on tobaccos companies' First Amendment rights, the court said.

In today's request for comment, the FDA writes it's hoping to get a billboard ban in place that is, well, not much a billboard ban:

... we are considering tailoring the distance requirement by leaving the 1,000 foot restriction for the largest and most prominent advertisements (billboards) and narrowing the distance to 350 feet (approximately one city block) for smaller advertisements that are not as prominent. Under this approach, the restrictions would limit advertising near schools only, rather than schools and playgrounds.

Related:

• FDA Says Cheerios Advertised as an Illegal Drug; Threatens to Seize Every Box in the U.S.
• New Review of Junk Food Ads Targeting Kids Will Likely End in Nothing Being Done