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legislative - state
July 10Tobacco and Liquor Advertising
Tobacco Advertising
Advertising of cigarettes, smokeless tobacco and little cigars remains contrary to Federal Law. Cigar smoke shops are permissible, as long as cigarettes are not mentioned in any way, including the name of the establishment. Cigars and pipes are permissible with the same caveat. A company named "Joe's Cigarette and Convenience Store" may not advertise anything using that name.The federal law prohibiting advertising of cigarettes is 15U.S.C. 1335. The statute is brief, and reads as follows: "After January 1, 1997, it shall be unlawful to advertise cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." (The statute has been amended to include a prohibition on smokeless tobacco, i.e. chewing tobacco, as well.) Violation of the act is a misdemeanor, and subjects the offender to a fine of up to $10,000 for each offense.
Tobacco Advertising Questions and Answers:
Question: May we advertise smoke shops?
Answer: Generally, yes. There is no prohibition against advertising smoke shops; however, each individual commercial must be scrutinized for content that may be prohibited. It is not the FCC that has primary enforcement responsibility for enforcing the laws relating to tobacco advertising, but instead this area is policed by the Department of Justice. The DOJ makes its decisions as to whether to seek penalties for such ads on a case by case basis, and it does not publish formal rules or guidelines for broadcasters to follow.
Question: Is a smoke shop that has the word cigarette in its name prohibited from advertising on a broadcast station?
Answer: Yes. Any mention of the word "cigarette" in the name of the advertiser will qualify as prohibited cigarette sponsorship. This is true even if the ad has nothing to do with smoking related products.
Question: What can we advertise?
Answer: Any advertisement that makes no mention of cigarettes, little cigars, or chewing tobacco does not violate the statute. Therefore, paraphernalia associated with smoking, such as cigar humidors, rolling paper, and pipes can be advertised. Even specific brands of cigars and pipe tobaco can probably be mentioned.
Summary of Attorney General Opinion on Liquor Advertising
By Dan Haskell, TAB Legislative Counsel
On April 5, the Tennessee Attorney General issued opinion number 0P0040. To see this opinion click here. This opinion ruled that the rules of the Tennessee Alcoholic Beverage Commission (TBAC) which prohibit broadcast advertising of alcoholic beverages are "vulnerable to challenge on grounds that they unlawfully infringe on the right to free speech in violation of the First Amendment of the United States Constitution."In 2001, The Tennessee Association of Broadcasters and the Tennessee Restaurant Association joined to petition the TABC to withdraw the rules which have now been held to be unconstitutional. At that time, the petition argued that the rules in question were unconstitutional. The TABC declined to consider the petiion.
In 2005, at our request, Senator Haynes requested the Attorney General's opinion which has now been issued. He also introduced legislation which would remove the TABC's authority to regulate such advertising.The TABC's rules which were ruled unconstitutional prohibited broadcast advertising by a complete range of licensees, including (1) wholesalers, (2) retail package stores, (3) liquor by the drink licensees (hotels, restaurants and private clubs), and (4) a wide variety of other specially defined liquor by the drink licensees. It is clear from the opinion that it is legal to advertise that which it is legal for them to sell. It is also legal for them to advertise the price of that which they have the right to sell. Some care should be taken by licensees to be sure that no "industry member" (distillers, wineries, etc.) participates in paying for any broadcast or other ads.
Broadcast Advertising of Alcoholic Beverages
The Tennessee Alcoholic Beverage Commission (“TBAC”) has agreed to take steps to withdraw the rules which were ruled unconstitutional pursuant to the Attorney General’s opinion issued on April 5. The agreement is as follows:
1. The TABC will modify its various rules relative to broadcast advertising of alcoholic beverages by retail liquor stores and wholesalers to permit broadcast advertising of “spirits and wine brands and prices”.
2. The TABC has also agreed to withdraw and/or amend its rules relative to advertising by liquor by the drink licensees (hotels, restaurants, and private clubs) to the extent that they are currently permitted to advertise the general availability of alcoholic beverages (use words such as cocktails, liquor, mixed drinks) and to advertise the period of special pricing (happy hours).
3. The TABC has agreed to consider changing its rules to permit liquor by the drink licensees to advertise brands and prices. I believe that the Attorney General’s opinion would permit such advertising. The reference in that paragraph to the “tied house” rules is the reference to another TABC rule which precludes “industry members” (distillers or wineries) from paying for or subsidizing advertising done by retailers, wholesalers, or liquor by the drink licensees. In addition to the foregoing, the TABC has agreed not to enforce the rules in question from May 9 going forward. This presents a unique opportunity for new customers to place ads with broadcasters which were previously considered illegal. I am available to consult with liquor licensees or broadcasters who wish to avail themselves of this opportunity.
Posted In: Resources : legislative : state
