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Tobacco ads spur free speech debate

By CHRISTIAN BOURGE, UPI Think Tanks Correspondent

WASHINGTON, July 17 (UPI) -- The question of whether tobacco manufacturers should be allowed to make advertising claims about the reduced medical risks of some of their products raises questions not only about public health policy, but also about restricting constitutionally guaranteed free speech, according to experts at a recent Washington think tank forum.

"I think what we will ultimately be debating are the mechanisms for discerning truthfulness," said Erik S. Jaffe, a conservative expert on constitutional law and chairman of the Federalist Society subcommittee on advertising law and regulation, at a Cato Institute policy forum Tuesday titled "Ads for reduced-risk tobacco: Public scourge or protected speech?"

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Debate over the issue emerged after a request made in February by the U.S. Smokeless Tobacco Co., known as UST, that the Federal Trade Commission -- the U.S. government agency that oversees all advertising -- approve a claim that its smokeless tobacco product -- a type of snuff -- is less hazardous than traditional cigarettes.

Those who oppose such ads believe that the validity of claims of reduced risk in ads for tobacco products should be investigated by a government agency devoted to health matters, such as the Food and Drug Administration, and that the Federal Trade Commission -- which has yet to respond to UST's request -- is ill-suited to oversee such advertising. Other opponents argue that tobacco ads touting reduced risk actually encourage the use of a medically dangerous product.

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Some critics view the tobacco company's request that the FTC approve the ads -- which was not technically required by law -- as a shrewd political attempt to offset the potential for the FDA to step in and demand proof for the claims.

Supporters of this type of advertising believe that permitting the promotion of reduced risk tobacco could actually have benefits in terms of helping consumers make better-educated choices about what form of nicotine delivery method they will choose. In addition, those with a more conservative interpretation of the U.S. Constitution believe that the federal government has no authority even to try to control the advertising of a legal product like tobacco.

Matthew Myers, president of the Campaign for Tobacco-Free Kids, an anti-smoking advocacy group, says no one in the public health community believes that truthful competitive tobacco advertising should be banned, or that safer tobacco products should not be marketed, only that claims for increased safety must be scientifically accurate.

"What this is about from a public health perspective is ensuring that claims that are made are, in fact, truthful and not misleading," said Myers at the conference.

Meyers believes that such products should be developed and marketed under a system that can ensure that they actually provide a lower health risk to consumers.

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He added that there is a historical basis for distrusting health claims from tobacco companies, including the fact that they made scientifically unjustified claims about the lower health risks of low tar cigarettes for years.

John E. Calfee, a resident scholar at the conservative American Enterprise Institute and an expert on advertising and health care issues, said at the forum that advertising is necessary as a means to ensure safer tobacco. He argues that advertising could fill the deficit in the public's knowledge of tobacco and its effects.

"Safe tobacco ads would bridge the gap in information about safer ways to use tobacco to obtain nicotine," said Calfee.

He says that advertising could play an important role in the public health arena because it is a more efficient way of targeting consumers than other methods of disseminating information. Competitive advertising for reduced-risk tobacco products, for instance, would tend to focus on the dangers of smoking.

Such advertising, which focuses on the negative possibilities of a product, have proven to be effective in promoting other products, such as for insurance, he said.

Calfee also believes that opposition to this form of advertising -- and to safer tobacco products in general -- ignores the reality that the public health community has focused on smoking cessation, instead of reducing the risk of smoking. He believes this has stymied the potential technological advancements that could hold health benefits for smokers.

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But Carlos T. Angulo, a lawyer with the firm Zuckerman Spaeder LLP, which represents the Campaign for Tobacco-Free Kids, argued at the forum that under the statutory process provided to the FDA, if a product makes health claims, it comes under the auspices of the agency's regulatory control because it is classifiable as a drug. This makes the marketing scheme for these reduced-risk tobacco products subject to FDA controls on advertising, he said.

"These are types of claims that really do require some scrutiny by an agency under our law to determine that they are true," said Angulo. "When you are dealing with claims of that sort, there is no problem with them as long as they are determined to be true."

Nevertheless, Jaffe argues that since tobacco is a legal product, the government has no constitutional right to restrict how it is marketed.

"The government has no interest -- and I don't mean a little, I don't mean some -- has no interests whatsoever in suppressing information for lawful products and that is true whether the product kills or not," said Jaffe.

He says there is no "remarkable governmental interest" -- a typical constitutional test -- to justify restricting the commercial speech of tobacco companies in marketing their products.

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He drew the analogy of Mercedes-Benz claiming their automobiles are safer than another brand of car, and argued that Mercedes would not have to run that assertion by the National Highway Transportation Safety Administration before making such claims in an advertisement.

Jaffe says that in this case -- as in the case with reduced-risk tobacco products-- the normal mechanisms of the market would act to correct any problems through the courts.

"If it turns out these companies are lying through their claims, they will get it in the end," said Jaffe. "They will get it through lawsuits."

Angulo, however, argued that an FDA review of tobacco advertising claims would not be inconsistent with First Amendment speech protections, and noted that the Supreme Court has found that constitutionally protected commercial speech must be truthful.

He says that the claims made by tobacco companies in relation to these products could easily skirt this requirement by mentioning the good effects of a product but ignoring its negative consequences.

"The fact that something is right doesn't exactly mean it is not misleading," said Angulo. "You can say something and leave out others, which makes the idea misleading. Truth is not a black and white matter."

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Ultimately, Jaffe says the debate over regulating the advertising of reduced-risk tobacco products comes down to how much power people believe the government should have in this arena. He believes that while we have "every reason" not to trust the tobacco companies, the government is also "notoriously inclined to suppress (important) information that is not in its world view."

"At the end of the day it comes down to who do you trust?" said Jaffe. "I don't trust companies, but I trust the government even less."

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