New FDA rules will greatly restrict tobacco advertising and sales

By Lyndsey Layton
Washington Post Staff Writer
Friday, March 19, 2010

The Food and Drug Administration announced rules Thursday that will severely restrict the way the tobacco industry can advertise and sell cigarettes and smokeless tobacco products, especially marketing efforts designed to appeal to children and teenagers.

The rules, which will take effect June 22, are part of broad new powers Congress granted to the FDA last year, when it passed landmark legislation to regulate the $89 billion tobacco industry. The law prevents the FDA from banning nicotine or tobacco, but it gives the agency vast authority to regulate the ingredients in tobacco products and the way they are distributed, sold and marketed.

"This is truly a historic announcement in our country's public health history," said Howard Koh, assistant secretary for health. "This is designed to prevent our children from becoming the next generation of Americans to die early from tobacco-related illnesses."

Under the new rules, the FDA will:

-- Ban tobacco companies from sponsoring sporting and entertainment events.

-- Outlaw free cigarette samples and giveaways of non-tobacco items with the purchase of tobacco.

-- Prohibit the sale of cigarettes in packs of fewer than 20, eliminating so-called "kiddie packs" that public health experts say make cigarettes more affordable.

-- Restrict tobacco products in vending machines and self-service displays to adult-only facilities, and require stores to place them behind the counter.

-- Forbid tobacco sales to children younger than 18 and require photo identification for over-the-counter sales.

-- Provide for federal enforcement against violators, ranging from warning letters to criminal penalties.

In addition, the agency is weighing whether to issue an additional rule for outdoor advertising, such as billboards.

In the first legal challenge to the new law, a federal judge in January knocked down two of the rules. R.J. Reynolds Tobacco and Lorillard, the country's second- and third-largest tobacco producers, argued that certain provisions violated their First Amendment rights to free speech. They filed a complaint in Kentucky, the state with the highest number of adult smokers.

Judge Joseph McKinley struck down a rule that would limit advertising to black text with no graphics except in adult magazines or in retail establishments open only to adults. The judge ruled that companies could use imagery and colors to communicate "what the product is and who makes it." That ruling would allow R.J. Reynolds, for instance, to continue using a drawing of a camel in its advertising for Camel cigarettes.

The FDA is appealing that part of the ruling. While the appeal is pending, the agency has not said whether it will enforce the rule regarding the use of color and imagery in advertising.

Tobacco advertising in this country dates to colonial times. As health concerns about tobacco grew in the 1960s, the federal government began to restrict marketing. In 1969, Congress banned running cigarette ads on television and the radio. Other restrictions followed, including the 1998 legal settlement between four major tobacco companies and 46 states, which prohibited tobacco companies from targeting children.

But anti-smoking groups and public health organizations argue that tobacco companies, which spend $35 million each day on marketing, have continued to direct advertising to teens and children in subtle ways. About 20 percent of high school students smoke, according to the Campaign for Tobacco-Free Kids. Children are a particularly important target population for anti-smoking efforts, because studies show that 90 percent of smokers began the habit when they were younger than 18. Health officials say that each day, 4,000 children younger than 18 try cigarettes for the first time and 1,000 of them become lifelong smokers.

About 450,000 people in the United States die from smoking-related illnesses each year, according to the Centers for Disease Control and Prevention. On average, smokers die 14 years earlier than nonsmokers.

The FDA tried to restrict tobacco advertising in 1996, but the tobacco industry successfully challenged those efforts in court and argued that the agency has overstepped its authority. That laid the groundwork for a 13-year effort by public health groups to win passage of a new tobacco-control law.

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