Tom Taylor pointed to this in his newsletter today. First a preface, since many people view public policy questions through the “how will this affect me?” Prism as opposed to “what effect will this have on society as a whole?”. I’m a never smoker, never drinker – but I don’t want the government imposing my decisions on others. I think it is a mistake raising the drinking age to 21 from 18, and telling people they can’t smoke in a restaurant.
So I’ve danced around the question – given that we have the first amendment, how is it possible the Congress can pass a law prohibiting a radio station from running advertisements for tobacco products? The above law is the reason. What does it actually say?
The main purpose of this law is to require cigarettes to carry the Surgeon General’s warning on packaging, billboards and magazine and newspaper ads. When it gets to radio, it’s an outright ban:
The relevant parts
CONGRESSIONAL STATEMENT OF PURPOSE
Section 2 of Pub. L. 98-474 provided that: “It is the purpose of
this Act [see Short Title of 1984 Amendment note above] to provide
a new strategy for making Americans more aware of any adverse
health effects of smoking, to assure the timely and widespread
dissemination of research findings and to enable individuals to
make informed decisions about smoking.”
Sec. 1335. Unlawful advertisements on medium of electronic
After January 1, 1971, it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission, for provision that a violation of this
chapter should constitute misdemeanor and be punishable by fine.
See, now, section 1338 of this title.
Sec. 1338. Criminal penalty
Any person who violates the provisions of this chapter shall be
guilty of a misdemeanor and shall on conviction thereof be subject
to a fine of not more than $10,000.
Some more background – the FCC is not part of the Federal Government. It has no legal authority to issue subpoenas, arrest or fine anyone. The only power they have is to take away someone’s FCC license and / or demand a “voluntary contribution” to the US Treasury. This is why the FCC has been impotent in shutting down pirate radio stations. The FCC has no police powers and has to get some part of the real government to intervene. Even if the FCC gets a judge to issue a fine, the FCC has no power to collect it – unless you have an FCC issued license.
So, what this means is…
The law is a law enforced by HHS – they’ll be the one filing suit in a court, not the FCC – however there is this quirk that HHS gets powers based on what powers the FCC is granted.
Does this law prohibit advertising on web sites? How about podcasts? What is I put Marlboro boxes on my web site but don’t take payment? What about an ad inserted into a radio stations stream by a third party? What if non US company advertises in an online magazine not targeted at Americans but that brand is available in the US?
If a cigarette company gets a radio station to run an ad, who committed the crime? The company? The radio station? The person reading the ad copy?