Congress Debates How Far To Go In Restricting Tobacco Advertising

The White House warned Congress Monday that imposing broad restrictions on tobacco advertising could be constitutionally risky, but threw back to Republicans the political question of how to get the industry to voluntarily curb its advertising.

In a memo released Monday, the White House said advertising limits in the proposed national tobacco deal raise “significant constitutional concerns,” which may be overcome only if cigarette makers agree to them, for instance, in consent decrees between the companies and individual states.

Cigarette makers have agreed to the restrictions nationally, but only as part of a deal that would shield them from mass lawsuits. As Congress has worked to fashion a bill around the settlement, that sort of trade-off has become increasingly unpopular.

According to a Republican Senate aide, despite its 20-page memo, the White House “never did get to the $1 million question”: whether ad restrictions are worth the trade-off of giving the industry a shield against lawsuits.

That’s the central question lawmakers have been grappling with in recent weeks. Many Republicans want President Clinton to agree to the controversial lawsuit limits before they put forward a bill. Otherwise, they fear, Democrats will accuse Republicans of selling out to the powerful tobacco lobby.

So far, it has been a standoff. Democratic senators, led by Kent Conrad of North Dakota, have introduced a bill that offers tobacco none of the legal protections it is seeking but mandates broad advertising restrictions. The White House has said it would prefer a measure without the liability limits, but added that they would not “be a deal-breaker.”

Meanwhile, Sens. John McCain, R-Ariz., and Orrin G. Hatch, R-Utah, have said liability limits may be necessary to get broad-based legislation, including the advertising restrictions that are considered key to cutting underage smoking.

The memo came in response to questions asked by McCain, who heads the Senate Commerce, Science and Transportation Committee. Monday, McCain met with White House domestic policy adviser Bruce Reed. “We had hoped for more specifics (in the memo). … But there was helpful information, and more importantly” McCain and the White House are “working toward resolving some of the issues,” said Commerce Committee staff director John Raidt.

The Senate also inched forward in its work on legislation, as the Commerce staff met with a bipartisan group of Senate aides to discuss the various measures that have been introduced.

The Food and Drug Administration already has put into place a set of tobacco marketing and advertising restrictions, which were struck down by a federal court after the industry challenged them. The court, however, never addressed the constitutionality of the measures, and the case is currently on appeal.