The Association of National Advertisers (ANA) recently urged the California Supreme Court to reject a class-action lawsuit on grounds that it poses a serious threat to all marketers by seeking to “childproof” all advertising in the state. 

The lawsuit was brought against four major tobacco companies under California’s false advertising laws for allegedly targeting minors through cigarette advertising. The ads in question appear in magazines with predominantly adult readership. 

The plaintiffs argue, however, that the ads are illegal because they “glamorize” tobacco and make it attractive to minors as well as adults.

The lower courts dismissed the lawsuit and the plaintiffs are appealing it to the state Supreme Court. ANA and its sister associations filed a “friend of the court” brief urging the Supreme Court to reject the lawsuit. Floyd Abrams, a First Amendment attorney with the New York law firm Cahill Gordon & Reindel, LLP, wrote the industry brief.    ANA executive vice president Dan Jaffe said, “The theory of the plaintiffs in this case is unprecedented and sweeping. They argue that there is no First Amendment protection whatsoever for advertising that ‘glamorizes’ products that are legal for adults but not legal for minors. What they are really seeking to do is to limit ads directed to adults to content that is appropriate for minors. The First Amendment does not allow such a radically restrictive approach.”

The industry brief argued that the lawsuit posed a direct threat to all marketers in California. It said, “If plaintiffs’ unprecedented view of the law were adopted by this Court, it would open a virtual Pandora’s box of civil liability for truthful advertising about other legal products that would inevitably chill enormous amounts of commercial speech that have long been constitutionally protected.

“So while this case on its facts may relate to cigarette advertising and minors, it will undoubtedly have an impact on the rights of all advertisers.”

Jaffe said, “All advertising is designed to portray a product in a positive or favorable light. Under the radically restrictive legal theory of the plaintiffs, companies would be exposed to potential liability under California law for ads for alcohol beverages, casinos, guns, NC-17 movies and other legitimate businesses merely because the ads portrayed those products in a positive or ‘glamorous’ manner that, while directed to adults, may also be seen by minors. 

“Efforts to childproof the flow of speech in our society might be politically popular, but they would impose a constitutionally intolerable burden on communications with adults.”

Copies of the amicus brief are available on request.

The ANA represents more than 300 companies with 8,000 brands that collectively spend more than $100 billion in marketing communications and advertising. The association’s members market products and services to consumers and businesses.