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Judge Rules Tobacco Ad Protected by First Amendment

August 6, 1986

WASHINGTON (AP) _ An R.J. Reynolds Tobacco Co. advertisement on smoking and health, challenged by the Federal Trade Commission as false and misleading, is protected by the First Amendment, an administrative law judge ruled Wednesday.

FTC Administrative Law Judge Montgomery K. Hyun, in dismissing the FTC’s June 16 complaint, ruled the Reynolds’ statement was an editorial and, therefore, was fully protected by the Constitution even if it were inaccurate or incomplete.

The commission contended the ad, which appeared in major newspapers and magazines from March to June 1985, was a commercial message that misrepresented the results of a government study on the health effects of smoking. The FTC also charged the company failed to disclose in the ad certain information about the study’s findings.

The ad, entitled ″Of Cigarettes and Science,″ contended that government studies indicated smoking is not as hazardous as the public has been told and challenged the relationship between smoking and heart disease.

Reynolds spokesman David Fishel said the company was pleased with the ruling, adding, ″We believe the decision is fully supported by the facts in the case.″

The FTC staff may appeal the decision to the commission. FTC spokeswoman Dee Ellison said the staff would decide what action to take after reviewing the decision.

In his ruling, Hyun explained that an advertisement classified as ″commercial speech″ has limited First Amendment protection and is subject to government regulation. ″Non-commercial speech″ is fully protected by the First Amendment and cannot be controlled by the government, he said.

The Reynolds ad falls into the category of non-commercial speech, he concluded, saying the statement ″is an editorial ad expressing Reynolds’ point of view on the issue of smoking and health.″ He noted that it did not mention brand names, show where a product may be purchased or otherwise promote a product.

The FTC maintained that the ad should be considered commercial speech because it was intended to pursuade smokers not to quit.

But Hyun wrote, ″We think the language of the ad is uncomplicated and the ad will be easily understood by any reasonable reader as an op-ed piece, not a cigarette ad.

″Once so perceived by the reader, he or she will expect to read in the ad an expression of opinion, an advocacy of a certain point of view, or even hyperbole by someone who may have an ax to grind,″ he said.

He added, ″editorial or non-commercial speech such as the Reynolds’ ad does not lose the full protection of the First Amendment simply because it contains inaccurate or incomplete information or some language which may arguably be construed or misconstrued to imply a promotional message.″

R.J. Reynolds, based in Winston-Salem, N.C., sells 20 brands of cigarettes and accounts for about one-third of the U.S. cigarette market.

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