WASHINGTON – This fall, the Senate will consider legislation banning color or imagery in tobacco advertisements placed where 15 percent of the audience is under 18, AdAge.com reports. The bill also restricts type sizes and dimensions for health warnings, and sets the number of items for giveaways and sponsorships.

However, despite the fact that many tobacco manufacturers already have voluntarily agreed to most of these changes, ad groups are gearing up to fight the proposed curbs because of the potential precedent for food and alcohol marketing.

“It’s a de facto ban on advertising of a legal product, and it gives all of us pause,” Dick O'Brien, executive vice president of the American Association of Advertising Agencies (AAAA), told AdAge. “What we must defend is the right of being able to market legal products to the public. If this passes, there will almost certainly be a First Amendment [legal] challenge.”

Dan Jaffe, executive vice president of the Association of National Advertisers (ANA), concurred. “There has never been a situation where 15 percent of the audience determines whether a product could be advertised. If it does move the ball, it is going in a direction that we don’t like. We are concerned about the precedent.”

Ad groups say the restrictions are really “content-based censorship,” which is unallowable under free-speech rulings by the U.S. Supreme Court. “All of the various disclosure requirements [in the bill] place the government in the role of copywriter,” said a letter from AAAA, the ANA and the American Advertising Federation sent to Capitol Hill. The letter suggested that the government is illegally “seizing” advertising space and compelling speech.

Proponents of the bill and Sen. Edward Kennedy (D-MA), who will sponsor the bill in the Senate this fall, contend that the government ought to be able to have a say in how a product that kills is advertised. If passed, the measure also would turn over tobacco regulation to the Food and Drug Administration, a move NACS opposes.