Tobacco Ads: Legal or Not On Internet?

PROHIBITED from advertising on television, under siege over the issue of youth smoking, tobacco purveyors using the Internet to hawk cigarettes may soon find it off limits too.

The Monitor has learned that three federal entities are now investigating whether promoting tobacco products in cyberspace is legit.

"We are looking very closely at the statutes," says Bonnie Jansen, a spokeswoman for the Federal Trade Commission (FTC) in Washington. The Justice Department and the Federal Communications Commission (FCC) are also considering how to respond to such advertising.

It is unclear, however, if there is anything the federal agencies can do. The Internet is still unregulated.

"There is an open question as to whether the FCC can somehow get jurisdiction to include this as telephonic communications," says David Post, a professor of law at Georgetown University in Washington.

Any decision made on tobacco advertising could have precedent-setting implications for the other legal gray areas of the electronic network used by millions of Americans daily.

Mr. Post says it is likely that Congress will have to grant the FCC additional authority for it to regulate the Internet.

Congress is receiving a growing number of complaints about pornography, obscenity, anonymous messages, and copyright infringement on the Internet.

"The list goes on and on and it will probably take some form of self-government," says Post, a specialist on cyberspace law.

The tobacco issue also illustrates how difficult it will be for the United States to regulate the medium since it is an international network.

In a preliminary search of the Internet, the Monitor found an Ontario, Canada, company, All Brands Exports, advertises cigarettes for sale through a toll-free phone number. The ad depicts a well-dressed man leaning back and exhaling smoke from a cigar.

The US does not have jurisdiction over such ads originating from other countries. "I don't see a way for the FCCs of the world to manage short of some treaty cooperation," Post says.

Although tobacco products do not appear to be widely advertised on the Internet, they are available.

A Miami cigarette manufacturer, Inter Tobacco Inc. advertises cigarettes by the carton (10 packs) or the container load. It offers to send a "free" sample carton of cigarettes, charging $15 to cover the cost of Express Mail Service. It claims to have had a "huge" sample request. Its Internet ad shows cartons of cigarettes with the brand names of "Mambo," "Miami," and "Emerald International," and promises "American tobacco."

The Ontario company is offering to sell cigarettes in Canada at a reduced price due to a tax break on Ontario tobacco products. There are also other ads and information about cigars and a "pipes mail group."

Among those complaining to the federal government about the use of the Internet by tobacco companies is Gregory Connolly, who runs the Massachusetts Tobacco Control Board, a state agency.

Dr. Connolly says he is unhappy over both direct ads and what he terms "indirect advertising." For example, an Internet user can monitor the exploits of the "Marlboro adventure team," individuals involved in sporting activities sponsored by the Philip Morris Companies in New York. The Marlboro reports on the Internet originate from Melbourne. "It's all an enticement to promote the cigarettes," says Connolly.

Brennan Dawson, a spokeswoman for the Tobacco Institute, an industry group in Washington that represents the major US tobacco products manufacturers, says she has never heard of any of the companies selling tobacco on the Internet.

"I'm not aware that any of our members are doing it, and I'm not aware of any implications," Ms. Dawson says.

One of those companies, Inter Tobacco of Miami, says it is not selling its product in the US. "What's wrong with offering cigarettes for export? Tobacco is a commodity like any other," says J. Gerstemeyer, managing director, in a telephone interview before abruptly hanging up.

All Brands, the Canadian company, also says it is selling outside US shores. A representative says US Customs would probably prevent Canadian produced cigarettes from being sold in the US. Instead, it exports the tobacco products to other Canadian provinces which are also on the Internet.

Questions about the legitimacy of tobacco advertising in cyberspace come on the heels President Clinton's announced last week of a package of regulatory restrictions intended to make cigarettes less available to young people and restrict advertising to young smokers. He declared nicotine an addictive drug, subject to regulation by the Food and Drug Administration. Tobacco manufacturers immediately filed suit to block the move.

Cigarettes are legal in the US but their sale to minors is illegal.

"Teenagers just don't just 'happen' to smoke," said Victor Crawford, a former lobbyist for the Tobacco Institute, who joined Clinton in a Saturday radio broadcast.

"They're victims of billions of dollars of marketing and promotional campaigns designed by top psychologists and advertising experts," Mr. Crawford said.