Reconsidering the Legality of Advertisements on Television Public Health and the Law

Introduction part, to an unsurprising finding Public Health and the Amid the action of the 2013 Super that the depiction of such prod- Bowl aired the usual array of high- ucts significantly influences people, Law Column priced advertisements. Most ads were especially children, to use them.5 original. Some were unusual. One The reappearance of “smoking” ads James G. Hodge, Jr., regional ad, however, seemed dis- on television may technically meet tantly familiar. The 30-second com- legal muster given that the prod- Veda Collmer, mercial promoted the NJOY King uct is not a cigarette. Yet Daniel G. Orenstein, electronic (or e-) cigarette1 to at least NJOY’s ads were negatively received Chase Millea, and 10 million viewers in several major by many public health advocates in markets.2 It featured an attractive part because of the ads’ potential Laura Van Buren male model taking a drag from what to encourage unlawful tobacco use looks like (and NJOY calls) a ciga- among minors.6 As discussed below, rette. He then slowly blows smoke to there are multiple legal paths to the tune of Foreigner’s “Feels Like the consider to preclude the depiction First Time.” Of course, the “smoke” of smoking or related behaviors on does not come from burning tobacco. television and other media without Rather, it is the water vapor produced prohibiting the sale or promotion of by an e-cigarette as part of its nico- e-, or unconstitutionally tine delivery process.3 This, however, infringing manufacturers’ commer- was not evident from the imagery. cial speech interests. For those watching the broadcast, including thousands of minors, The Rise of E-Cigarettes and NJOY’s advertisement depicted what Related Advertising tobacco companies have not por- While NJOY’s Super Bowl com- trayed on television for decades: a mercial reached perhaps the largest person engaged in smoking behavior. single audience to date, this ad and Following a series of legal maneu- others began airing on television and vers spearheaded by the federal gov- other media in late 2012.7 For exam- ernment or agreed to by tobacco ple, actor Steven Dorff introduced companies, television advertising blu eCigs, owned by tobacco giant of tobacco products has been pro- Lorillard,8 to American television hibited since 1971.4 This is due, in audiences in October of last year.9

About This Column James G. Hodge, Jr., J.D., LL.M., is the Lincoln Professor of Health Law and Eth- James G. Hodge, Jr., J.D. LL.M., ics and Director of the Public Health Law and Policy Program at the Sandra Day serves as the section editor for Public O’Connor College of Law at Arizona State University (ASU). Veda Collmer, J.D., Health and the Law. He is the Lincoln is a Robert Wood Johnson Visiting Attorney and Fellow with the Public Health Law Professor of Health Law and Ethics at and Policy Program at the Sandra Day O’Connor College of Law, ASU. Daniel G. the Sandra Day O’Connor College of Orenstein, J.D., is a Fellow with the Public Health Law and Policy Program at the Law and Director of the Public Health Sandra Day O’Connor College of Law, ASU. Chase Millea is a Research Associate Law and Policy Program at Arizona with the Public Health Law and Policy Program at the Sandra Day O’Connor College State University. of Law, ASU. Laura Van Buren is a member of the Public Health Law and Policy Cluster Group and J.D. Candidate at the Sandra Day O’Connor College of Law, ASU. global health and the law • spring 2013 369 JLME COLUMN

Though the ads are recent, the prod- for smoking cessation23 (even though who see smoking behaviors in mov- ucts have existed for nearly half a NJOY® and other companies do not ies and on television are likely century. Herbert Gilbert patented the imply any health benefits underlying to perceive smoking as acceptable first smokeless, non-tobacco cigarette their products’ use24). Other public and eventually try it.36 They are also in 1965.10 The modern prototype for health officials are concerned about at greater risk of becoming long-term the “electronic delivery sys- the lack of available information smokers.37 tem” (ENDS) was created in the early regarding long term effects, as well as In response to the Surgeon Gener- 2000s in China,11 which exported the potential for some consumers to al’s report, tobacco companies prom- many of these products for sale in the develop strong nicotine addictions.25 ised initially to self-regulate their United States. Determining whether e-cigarettes marketing strategies, but still adver- A typical ENDS kit contains a bat- are in fact a healthier alternative to tised on prime time television and tery and charging mechanism, a car- tobacco — or a new addictive risk — sometimes disseminated inaccurate tridge containing “smoke juice” (a requires substantial further research. claims about the health benefits of combination of water, nicotine, and For now, the immediate concern is smoking.38 In 1969, Congress enacted flavorings12), and an atomizer to heat the extent to which on-air advertise- the Public Health Cigarette Smok- the cartridge contents into a vapor. ments depicting smoking of a prod- ing Act to prohibit all television and Product costs vary from about $22 uct designed to resemble tobacco radio advertisements of cigarettes — $9013 depending on the amount cigarettes may encourage minors beginning January 2, 1971.39 The of equipment and cartridges pur- to smoke electronic or tobacco restriction was challenged legally on chased in a single package. Though cigarettes.26 free speech and due process grounds, considerably more expensive than but was held to be constitutionally a traditional pack of tobacco ciga- Existing Legal and Policy valid under standards at that time.40 rettes, e-cigarette sales are booming. Approaches to Curb Tobacco Later, the Comprehensive Smoke- Sottera, Inc., makers of the leading Advertisements less Tobacco Health Education Act brand, NJOY,14 sells its products in Not long ago, cigarette advertise- of 1986 similarly banned smokeless over 30,000 retail locations across ments dominated television and tobacco advertisements from radio all states.15 Collectively, ENDS com- radio airways. In the 1950s and 1960s and television airwaves.41 panies reported profits of over $300 they comprised more than 10% of In 1998, the Master Settlement million in 2012. Profits may exceed network television advertising reve- Agreement (MSA) between tobacco $1 billion by 2016.16 The long-term nue.27 Tobacco companies frequently companies, 46 states, and the Dis- objective, noted Sottera CEO Craig sponsored prime time shows like trict of Columbia (1) restricted Weiss recently, “is to make (tobacco) NBC’s Camel News Caravan.28 Smok- tobacco print advertising directly cigarettes obsolete.”17 ing was also featured in popular or indirectly targeting youth, (2) In promoting their products, shows such as The Flintstones29 and banned billboard cigarette adver- many ENDS companies mimic prior I Love Lucy.30 Well-known enter- tisements, (3) disbanded the indus- marketing strate- tainers like Johnny Carson and John try-funded Tobacco Institute, and gies.18 The recent ad for the NJOY Wayne31 endorsed cigarette brands.32 (4) prohibited use of cartoon char- King is illustrative.19 Cue the classic Ads depicted smokers as carefree, acters (such as Joe Camel) in ciga- rock music. Focus on the product: tan independent, and rebellious. Exhaus- rette advertisements.42 Subsequent “filter;” classic cigarette construction tive television and radio advertising litigation over MSA violations forced with a “real paper feel;” and simulated helped boost cigarette sales by 17% tobacco companies to refrain from burning tip.20 Pan to a young, attrac- between 1950 and 1960.33 advertising in certain magazines as tive man as he takes a slow drag. “You Public acceptance of pervasive well. Big tobacco companies, includ- know what the most amazing thing tobacco advertising began to change ing Phillip Morris and Brown & about this cigarette is?” the narrator following the U.S. Surgeon General’s Williamson, agreed not to advertise asks. “It isn’t one.”21 By its design and Smoking and Health Report in 1964, inside magazines with a 15% youth function, however, it is hard to tell the first study to link serious health audience or on the back cover of any it is not a tobacco cigarette. Even its consequences with smoking.34 It magazine. Lorillard agreed to not package resembles the classic styling specifically identified children as advertise in magazines with an 18% and colors of Marlboro cigarettes.22 susceptible to a lifelong addiction youth readership.43 As the number of ENDS products to smoking because they associate it Acknowledging that tobacco adver- and related advertising expand, pub- with adulthood and view it as a status tisements contribute significantly lic health practitioners are divided. symbol for peer acceptance.35 Mod- to underage smoking,44 the federal Some see ENDS as a viable option ern research confirms that children Act of 2009 further

370 journal of law, medicine & ethics Hodge, Jr., Collmer, Orenstein, Millea, and Van Buren restricted tobacco marketing target- Crafting a Ban on Displays of what it means to market a product ing children. It expanded the author- Cigarette Smoking Behaviors on “for therapeutic purposes.”54 Recent ity of the Food and Drug Administra- Television studies suggesting that many users tion (FDA) under the Food, Drug, Since existing tobacco advertising view ENDS as smoking cessation and Cosmetic Act (FDCA) to regulate restrictions do not target smoking aids55 may buttress future regulation any product made or derived from behaviors, NJOY can lawfully televise of these products as drugs or devices, tobacco and intended for human con- its ads. As a result, children, who are which would allow additional restric- sumption.45 It also banned cigarette highly susceptible to advertising49 tions on advertising practices. brand endorsements of sports and and unlikely to distinguish between FDA is also considering regulat- entertainment events.46 Additional ENDS and tobacco cigarettes, are ing ENDS pursuant to the Tobacco efforts to limit tobacco advertise- once again exposed to broadcast Control Act,56 which currently cov- ments are under consideration. images of smoking. The primary pub- ers cigarettes, cigarette tobacco, roll-

Since existing tobacco advertising restrictions do not target smoking behaviors, NJOY can lawfully televise its ads. As a result, children, who are highly susceptible to advertising and unlikely to distinguish between ENDS and tobacco cigarettes, are once again exposed to broadcast images of smoking. The primary public health risk is not just that minors will try e-cigarettes, but that they will be influenced to smoke tobacco cigarettes — precisely the harm underlying support for existing tobacco advertising restrictions.

If most television, radio, and print your-own tobacco, and smokeless lic health risk is not just that minors advertising of cigarettes (and other tobacco.57 This would subject ENDS will try e-cigarettes, but that they will tobacco products) is unlawful, how to mandatory registration, ingre- be influenced to smoke tobacco ciga- can NJOY lawfully depict cigarette dient listing, user fees, and other rettes — precisely the harm under- smoking on its commercials? This requirements,58 but not extensive lying support for existing tobacco ability is due in part to limitations advertising limits. While the FDCA advertising restrictions. in the scope of tobacco advertising constrains television advertising of If ENDS manufacturers do not restrictions. Though extensive, only drugs and devices, the scope of adver- voluntarily refrain from portraying the commercial promotion of tobacco tising restrictions under the Tobacco dangerous behaviors in their adver- products is explicitly banned; smok- Control Act is limited to prohibiting tisements (as alcohol companies have ing behaviors (e.g., puffing on a marketing tobacco products in com- done), there are multiple legal paths cigarette, blowing smoke from one’s bination with other FDA-regulated to consider to restrict displays of mouth) are not similarly precluded. products.59 smoking behaviors in ENDS advertis- Contrast this approach with volun- Greater restrictions would arise ing. For example, FDA has sought to tary limits on product use advertis- if other existing statutory prohibi- regulate ENDS as “drugs” or “devices” ing agreed to by the alcohol industry tions on tobacco advertising applied via the FDCA,50 which would allow it and overseen by the Federal Trade to ENDS. However, current legis- to ban such products outright, absent Commission.47 For years, the alcohol lation banning television advertis- considerable additional procedures industry has self-regulated market- ing for “cigarettes”60 and “smokeless to approve them for consumer use.51 ing practices to limit advertising that tobacco”61 arguably do not apply to However, in 2010 the D.C. Circuit shows excessive drinking or driving e-cigarettes, even if they are made Court of Appeals in Sottera, Inc. v. while intoxicated.48 While these sorts with tobacco-derived ingredients FDA52 accepted the industry argu- of behavioral images related to alco- like nicotine. Courts may consider ment that ENDS are neither drugs hol consumption in advertising are an expansive interpretation to apply nor devices because they are not taboo, the tobacco industry has not current tobacco-based advertising marketed as intended for a thera- agreed to similar limits. restrictions based on efforts of ENDS peutic purpose.53 Following Soterra, advertisers to mimic traditional ciga- FDA is considering new guidance or rettes. This judicial approach would regulation to more broadly define be consistent with legislative intent global health and the law • spring 2013 371 JLME COLUMN

(last visited from smoking-related ads, but lacks use for the protection of minors by February 12, 2013). express legislative or regulatory limiting their exposure to targeted 13. NJOY, Rechargeable Express Kits, available at (last visited February 12, 2013); legislatively expand existing prohibi- Disclaimer and Acknowledgement blu eCigs, Store, available at (last visited tions to ban advertising that depicts Supported in part by the Robert Wood Johnson Foundation through the Network February 12, 2013). smoking behaviors using products for Public Health Law-Western Region 14. Statistic Brain, that resemble cigarettes. “Smoking Office at the Sandra Day O’Connor College Statistics, updated January 21, 2013, available at to include activities clearly associated publication are those of the authors and do (last visited February 12, 2013). with smoking tobacco cigarettes, not represent the policy or position of the 15. NJOY, Find NJOY Products at a Store Near You, available at

372 journal of law, medicine & ethics Hodge, Jr., Collmer, Orenstein, Millea, and Van Buren

paid-thousands-promote-smoking. and Marketing Restrictions,” Tobacco 49. S. Slater et al., “The Impact of Retail html#axzz2KcrcKBJh> (last visited Control Legal Consortium (2004): Cigarette Marketing Practices on Youth February 12, 2013). at 5; S. Elliot, “Once a Mainstay of Smoking Uptake,” Archives of Pedi- 32. Roswell Park Cancer Institute, The Magazines, Cigarette Makers Drop atric Adolescent Medicine 161, no. 5 Tobacco Industry Hall of Shame, avail- Print Ads,” New York Times, November (2007): 440-445, at 444; J. Pierce et al., able at (last visited February nytimes.com/2007/11/29/business/ rettes and Adolescent Smoking,” JAMA 12, 2013). media/29adco.html?pagewanted=all&_ 279, no. 7 (1998): 511-515, at 515. 33. See Pollay, supra note 27, at 130. r=0> (last visited February 12, 2013); 50. Sottera, Inc. v. FDA, 627 F. 3d 891, 893 34. Report of the Advisory Committee E. Merlo, “The Tobacco Industry (DC 2011), affirming 680 F. Supp 2d 62 to the Surgeon General of the Public Responds,” Health Affairs 21, no. 3 (2010). Health Service, Smoking and Health, (May 2002): 281-282. 51. 21 U.S.C. § 351 (2012); 21 U.S.C. § 352 United States Deptarment of Health, 44. Pub. L. No. 111-3, 123 Stat. 1778 § (2012). Education, and Welfare, 1964, at 8, 101(rr)(1) (2009) (amending 21 U.S.C. § 321 52. Sottera, 627 F.3d at 895. available at (last vis- § 2(5) (2009) (codified at 21 U.S.C. § 387 54. U.S. Food and Drug Administra- ited February 12, 2013). (2012)). tion, “Regulation of E-Cigarettes and 35. Id., at 371-372. 45. Pub. L. No. 111-3, 123 Stat. 1778 § Other Tobacco Products,” available 36. See Sargent et al., supra note 5, at 1187; 101(rr)(1) (2009) (amending 21 U.S.C. at (last visited ciation between Smoking Depictions (2009) (amending 21 U.S.C. § 387(a)(1) February 14, 2013). in Films and Adolescent Tobacco Use (2012)). 55. S. E. Adkison et al., “Electronic Nico- Nested in a British Cohort Study,” Tho- 47. Federal Trade Commission, Self Regula- tine Delivery Systems: International rax 66, no. 10 (October 2011): 856-861. tion in the Alcohol Industry: A Review Tobacco Control Four-Country Survey,” 37. See Waylen et al., supra note 36, at 861- of Industry Efforts to Avoid Promot- American Journal of Preventive Medi- 862; G. Botvin et al., “Smoking Behav- ing Alcohol to Underage Consumers, cine 44, no. 3 (2013): 207-215, at 207. ior of Adolescents Exposed to Cigarette September 1999, available at (last visited February 14, tion, “News and Events: Electronic 38. See Pollay, supra note 27, at 130. 2013); Wine Institute, Code of Adver- Cigarettes (e-Cigarettes),” available 39. 15 U.S.C. §§ 1332(1)(A–(B), 1335 tising Standards, available at (last URHGdb_xrjI.email> (last visited Feb- ell, 333 F. Supp. 582, 583 (D.D.C. 1971). visited February 12, 2013); Beer Insti- ruary 14, 2013). 41. 15 U.S.C. § 4402(4)(c) (2012). tute, Beer Institute Advertising and 58. Id. 42. Master Settlement Agreement (1998), Marketing Code, available at (last visited BI-AdCode-5-2011.pdf.> (last visited U.S.C. § 1335 (2012). February 13, 2013). February 12, 2013). 61. 15 U.S.C. § 4402(c) (2012); 15 U.S.C. 43. D. Eckhart, “The Tobacco Master 48. See Federal Trade Commission, supra § 4408(1) (2012); 21 U.S.C. § 387(18) Settlement Agreement: Enforcement note 47; Beer Institute, supra note 47. (2012).

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