Setting Off the Smoke Alarm

By Richard Lacayo

If the American Medical Association gets its way, the Marlboro Man will have to ride off into the sunset for good. Last week the A.M.A.'s 371-member policymaking house of delegates voted almost unanimously to back a prohibition of all cigarette advertising. Such commercials have been forbidden on television and radio for the past 15 years, and the A.M.A. will now lobby to get Congress to extend the injunction to newspapers, magazines, billboards and even skywriting. The association would also prohibit ads for snuff and chewing tobacco. This sweeping ban is necessary, the doctors argue, because the health risks are so great. Although the percentage of Americans who smoke has been declining, some experts believe that perhaps 1,000 deaths in the U.S. each day are associated with smoking cigarettes.

The tobacco industry is far from being the nation's largest advertiser: last year it spent only $872 million on ads, in contrast to $2.9 billion by food and food-product companies and $2.7 billion by the auto industry, and it accounted for 9% of magazines' advertising revenue and 1% of newspapers'. The A.M.A.'s proposed ban was immediately criticized not only by advertising and publishing-industry groups but by the American Civil Liberties Union and most First Amendment scholars, who believe that the proposal may be hazardous to the Constitution. "While the Government has an interest in preserving the health of its citizens, a broad ban goes much too far," says University of Chicago Law Professor Geoffrey Stone.

Advertising has always had second-class status among the forms of discourse covered by the First Amendment's freedom-of-speech guarantees. The Supreme Court, notes Columbia Law Professor Vincent Blasi, "has clearly said that commercial advertising is not protected to the same degree as political debate or artistic expression." Indeed, the court upheld without comment the 1971 ban on broadcast cigarette ads. Since then, however, the Justices have been sheltering commercial speech more aggressively. In 1980 the court struck down a New York rule that sought to conserve energy by banning utility ads promoting electricity use. Before the Government may regulate truthful advertisements for legal products, said the majority, it must show that a "substantial interest" is involved, that the regulation would directly advance this interest, and that it would be no more extensive than necessary to serve the proposed end. Many experts believe the A.M.A. would have a hard time persuading the court that a total ban on advertising was necessary to achieve the goal of reduced smoking. Some also point out that any legal theory upholding a cigarette-ad ban could apply to a host of "dangerous" products -- from alcohol to junk food -- raising the problem of where to draw the line.

Some supporters of a ban believe the A.M.A. could strengthen its case by stressing that outlawing cigarette advertising is aimed at protecting minors. Critics of the tobacco industry scoff at its claims that cigarette ads are designed primarily to get smokers to stick with one brand or try another. "A rather small number of smokers switch," maintains Northeastern University Law Professor Richard Daynard. "The big payoff is in getting people to smoke, and the fresh market is entirely kids." Cigarette advertisers counter that they do not promote directly to a youth market, that they do not use sports or entertainment stars, and that all models in ads must appear to be 25 or older. The Supreme Court two years ago did not accept the argument that unsolicited ads for contraceptives could be banned from the mail to protect minors.

The answer for the A.M.A. is not to ban ads but "to speak out more," says Attorney Floyd Abrams, a free-speech specialist who has advised media and tobacco companies. "First Amendment theory says that if speech is troubling, we counter it with speech that responds." Undaunted, the A.M.A. will soon begin drafting model legislation. Meanwhile, the Supreme Court could signal its current thinking on the subject of ad bans in the next few months. The high bench is expected to rule on a First Amendment challenge to a Puerto Rican law that bans local advertising by the island's legal gambling casinos.

With reporting by Anne Constable and Patricia Delaney/ Washington, with other bureaus