Advertising Restrictions

Updated About encyclopedia.com content Print Article Share Article
views updated

Advertising Restrictions

As the modern antismoking movement gathered force in the 1960s, public health advocates focused much of their attention on limiting advertising of tobacco products. Some countries took steps to ban cigarette ads from television and radio during this period, and since then many industrialized democracies have placed limits on broadcast, print, or display advertising. These moves had to confront not only the opposition of the tobacco industry and media interests that depended on tobacco advertising revenue, but also the question of whether such bans were truly an effective strategy for curbing consumption. Further, countries such as the United States and Canada with constitutional safeguards on freedom of expression had to decide whether the marketing messages of corporations warranted the same types of protections accorded to political or artistic speech.

Early Moves in the 1960s and 1970s

In the wake of the 1964 Surgeon General's report, there was public support for a total ban on advertising in the United States, but the tobacco lobby was able to forestall such regulation. It was only through a series of circuitous legal and political maneuvers that the first restrictions were enacted. An activist lawyer, John Banzhaf, filed a petition with the Federal Communications Commissioner (FCC) demanding that broadcasters allocate air-time to presenting antismoking advertisements to counter the effect of tobacco industry messages. The result was a series of powerful "kick the habit" ads that ran for three years. In 1968, when the FCC called for a ban on cigarette advertising on television and radio, the tobacco industry supported the move out of self-interest: the antismoking spots—which would cease once cigarette ads themselves left the airwaves—were hurting their business more than the industry's own ads were helping it. At the beginning of 1971, cigarette ads were taken off the air in the United States, and a subsequent analysis suggested that the tobacco industry's assessment was correct. During the three years that the antismoking ads had aired, per capita cigarette consumption declined markedly, but when the ads went off, consumption began to inch back upward. The industry simply shifted its dollars to the print media; total spending on magazine advertising doubled and newspaper advertising quadrupled.

During this period, television bans went into effect in other countries, including Great Britain, France, Germany, and Australia. In some cases the tobacco industry negotiated voluntary agreements with governments to reduce or eliminate broadcast ads in order to head off potentially more far-reaching restrictions. However, other forms of marketing remained common, including newspaper and magazine ads, billboards, sponsorship of sporting events, posters and retail displays, and promotional items featuring product logos.

Economic and Political Constraints

The powerful influence of tobacco manufacturers, retailers, and other corporate interests has been evident in countries as different as Australia, which has one of the world's most far-reaching antitobacco regimes in place, and Japan, which has one of the least. In Australia, the industry negotiated a voluntary agreement in 1976 that banned broadcast advertising but contained a provision allowing continued industry sponsorship of sporting events, one of its most popular forms of promotion (where, public health advocates charged, its signs and posters would reach a predominately youthful audience). During the following decade when attempts were made to close the loophole and extend the ban to print advertising, the government was reluctant to antagonize the country's most powerful media barons, who derived significant income from tobacco advertising and sporting events (one of whom also served on the board of Philip Morris). Eventually the ban was extended to all advertising, due in part to the actions of a well-organized antitobacco movement, and even perimeter ads at sporting events, which had been the most contentious issue, were eventually prohibited.

In Japan, where tobacco production was for many decades a state monopoly and continues to have major fiscal importance, a modest set of restrictions that discouraged "excessive" advertising (but provided no sanctions for violating the guidelines) was put in place in 1984. The Japanese cigarette market was closed to foreign producers at this time, and smoking rates among men were the highest in the industrialized world, so manufacturers saw little threat in the limited restrictions. The opening of the Japanese cigarette market to foreign competition changed this dynamic. As American manufacturers began competing with Japanese, the government was forced to issue new guidelines so that domestic producers would not be put at a competitive disadvantage. In 1998, the government issued a more comprehensive set of restrictions, including efforts to limit advertising aimed at youth, that brought Japan closer in line with other countries, but even these rules rely entirely on the voluntary cooperation of industry.

Freedom of Speech and the Effects of Advertising

During the 1980s, a broad spectrum of public health groups in the United States pressed for more comprehensive restrictions that would extend the television and radio ban to other forms of promotion. But their efforts were constrained by the constitutional question of what protections, if any, were due to commercial speech. The United States Supreme Court had handed down inconsistent rulings on the issue, ultimately determining that while advertising did not warrant the same First Amendment protections that applied to political or artistic speech, limits on commercial expression had to be narrowly tailored and advance a compelling state interest.

A similar challenge confronted public health advocates in Canada. That country's Supreme Court declared in 1995 that a sweeping ban passed several years earlier on all forms of advertising was a violation of constitutionally guaranteed freedom of expression. The government responded by modifying the law to ban only "lifestyle" advertisements, those that sought to portray smoking in general as glamorous or appealing, while allowing "brand preference" ads designed to attract smokers to a particular brand.

In addition to legal principles, the debates over the scope of advertising restrictions hinged on a much-disputed empirical question: Did bans on advertising really serve to reduce the use of tobacco? Although the belief that advertising stimulated overall consumption was powerfully intuitive—why would the industry devote billions of dollars to it each year if such expenditures did not increase their market?—there were few data to support either this relationship or the converse hypothesis that limits on ads would result in reduced consumption. Research into these questions had produced conflicting results, but showed that the effect of advertising bans on consumption was modest at best. Cigarette manufacturers, for their part, insisted that advertising served only to lure smokers from one brand to another, not stimulate demand among people who would not otherwise take up the habit. As long as tobacco products remained legal, they claimed, the government had no grounds for limiting consumers' information about them.

A corollary issue that assumed great salience in debates over banning advertising was the effect of ads on young people. Since the majority of smokers began the habit as minors, even those who took a strong antipaternalist stance in opposing restrictions had to concede that the protection of youth from the manipulation of the tobacco industry might provide an acceptable rationale for government intervention. The extremely successful Joe Camel campaign beginning in 1988 galvanized antitobacco activists to press for greater restrictions in order to protect youth, especially after research indicated that the perpetually smoking cartoon character was almost as recognizable to six-year-olds as Mickey Mouse. During the 1990s, protecting children was the basis for increasingly vehement calls for a total ban on advertising in the United States, even though there was considerable doubt whether such a move would be constitutionally permissible.

The Limits of Restrictions

In the United States, a comprehensive set of advertising restrictions was put in place under the Master Settlement Agreement (MSA) that was reached between the tobacco industry and 46 state attorneys general in 1998. The guidelines prohibited advertising targeting youth, and banned billboards and ads on public transportation and in arenas, stadiums, and shopping malls. Retailers were still allowed to post signs up to fourteen feet square. In 2001 the Supreme Court, in a case originating in Massachusetts, addressed the question of how far individual states could press beyond these restrictions. The state had imposed a sweeping set of restrictions geared toward protecting youth. Outdoor advertising within 1,000 feet of schools and playgrounds was banned, and ads placed lower than five feet off the ground, at the eye level of children, were prohibited.

When the rules were challenged by a consortium of tobacco producers and retailers, the Supreme Court agreed with the plaintiffs' claim that they were overbroad. The guidelines would amount to a de facto ban on tobacco advertising in much of the state, the court held, and were thus in violation of the First Amendment. The ruling posed a conundrum for those committed to reducing tobacco use. A growing body of econometric research suggested that partial advertising bans had little or no effect on consumption. Only a total ban—the type most likely to be found unconstitutional in the United States—would be effective.

Internationally, in 2003, the World Health Assembly adopted the Framework Convention on Tobacco Control, a comprehensive treaty that required all signatories to move toward a comprehensive advertising ban within five years. The document required that countries whose constitutions did not allow complete bans restrict advertising within the limits of their laws. Although the United States signed on to the document after dropping its earlier opposition, it had not formally ratified the treaty as of mid-2004.

See Also Advertising; Antismoking Movement Before 1950; Antismoking Movement From 1950; Marketing.

▌ JAMES COLGROVE

BIBLIOGRAPHY

Bayer, Ronald. "Tobacco, Commercial Speech, and Libertarian Values: The End of the Line for Restrictions on Advertising?" American Journal of Public Health 92 (March 2002): 356–359.

Bayer, Ronald, Lawrence O. Gostin, Gail H. Javitt, and Allan Brandt. "Tobacco Advertising in the United States: A Proposal for a Constitutionally Acceptable Form of Regulation." Journal of the American Medical Association 287 (12 June 2002): 2990–2995.

Feldman, Eric A., and Ronald Bayer, eds. Unfiltered: Conflicts Over Tobacco Policy and Public Health. Cambridge, Mass.: Harvard University Press. 2004.

Goodin, Robert, E. No Smoking: The Ethical Issues. Chicago, Ill.: University of Chicago Press, 1989.

Kluger, Richard. Ashes to Ashes: America's Hundred-Year Cigarette War, the Public Health, and the Unabashed Triumph of Philip Morris. New York: Alfred A. Knopf, 1996.

Rabin, Robert L., and Stephen D. Sugarman, eds. Regulating Tobacco. Oxford: Oxford University Press, 2001.

Saffer, Henry, and Frank J. Chaloupka. "The Effect of Tobacco Advertising Bans on Tobacco Consumption." Journal of Health Economics 19 (Fall 2000): 1117–1137.

Warner, Kenneth E., et al. "Promotion of Tobacco Products: Issues and Policy Options." Journal of Health Politics, Policy, and Law 11 (Fall 1986): 367–392.

econometrics the study of economic data usually employing statistical methodologies.