Legislative News: U.S. House Passes Sweeping Tobacco Marketing Legislation


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Legislative News: U.S. House Passes Sweeping Tobacco Marketing Legislation

Issue: 2009apr

The U.S. House of Representatives has passed H.R. 1256, which provides for comprehensive regulation of tobacco products, by a 298-112 vote. The Senate must now consider passage of the House bill or develop a bill of its own.

The significant issue for the promotional products industry is that the bill gives the Food and Drug Administration (FDA) sweeping authority to regulate the advertising and promotion of tobacco products. In 1996, the FDA put forth regulations regarding tobacco products, but the U.S. Supreme Court ruled in 2000 that the FDA did not have the authority to do so unless specifically directed by law.

While H.R.1256 does not include the specific language of the 1996 regulations, it is widely anticipated that if it were passed by Congress and signed into law by the President, most of the 1996 regulations would be proposed again by the FDA.

The 1996 regulations included the following language: “No manufacturer and no distributor of imported cigarettes or smokeless tobacco may market, license, distribute, sell, or cause to be marketed, licensed, distributed, or sold any item (other than cigarettes or smokeless tobacco) or service, which bears the brand name (alone or in conjunction with any other word), logo, symbol, motto, selling message, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of cigarettes or smokeless tobacco.”

“No manufacturer, distributor, or retailer may offer or cause to be offered any gift or item (other then cigarettes or smokeless tobacco) to any person purchasing cigarettes or smokeless tobacco in consideration of the purchase thereof, or to any person in consideration of furnishing evidence, such as credits, proofs-of-purchase, or coupons, of such a purchase.”

The FDA may by regulation require restrictions on the sale and distribution of a tobacco product, including restrictions on the access to, and the advertising and promotion of, the tobacco product, if the FDA determines that such regulation would be appropriate for the protection of the public health.

The FDA may by regulation impose restrictions on the advertising and promotion of a tobacco product consistent with and to full extent permitted by the First Amendment to the Constitution. The finding as to whether such regulation would be appropriate for the protection of the public health shall be determined with respect to the risks and benefits to the population as a whole, including users and nonusers of the tobacco product, and taking into account—the increased or decreased likelihood that existing users of tobacco products will stop using such products; and the increased or decreased likelihood that those who do not use tobacco products will start using such products.

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