How do you advertise a business that sells tobacco products and has the word “cigarette” in its name? Apparently, you don’t, at least not on radio and TV stations – based on the teachings of the Public Notice released by the FCC this week, entering into a consent decree with a broadcaster. In exchange for dismissing its investigation of the broadcaster, the broadcaster agreed to voluntarily contribute $15,000 to the US Treasury and adopt a compliance program to monitor the sponsorship identification of commercial messages broadcast on its station. What was the problem? The station tried to avoid the name of a local business that wanted to advertise on the station – The Cigarette Outlet. The station was apparently aware of the prohibition in the FCC rules and in US criminal statutes against promoting the sale of cigarettes on the broadcast airwaves. So it did not want to say the name of the business on the air, as you can’t promote cigarettes. But, it wanted to advertise the other products sold by the business (while cigarettes and smokeless tobacco cannot be advertised on the air, subject to certain limitations, other tobacco products can be promoted). So, in the ads, the station talked about the products sold at the store, and gave its address, phone number and directions to its one and only location. The licensee argued that this should have been enough to identify the sponsor of the ads – as the whole purpose of the sponsorship identification rule (Section 73.1212) is to inform the public about who the true sponsor of an ad is. Here, argued the licensee, there could be no question who the sponsor was – but they just could not say the name on the radio because of the statutory prohibition against cigarette ads. In the consent decree entered into by the broadcaster, the FCC’s Enforcement Bureau simply said in response to the licensee’s arguments: “The Bureau disagrees with this assertion.”
No explanation was provided as to why the Bureau disagreed. The FCC’s sponsorship identification rule, Section 73.1212, provides that the true sponsor of an ad for which the station receives consideration must be disclosed in the ad, with certain very limited exception. The rule does provide that, where an ad is for a product or service, the trade name of the product or service can be sufficient identification, and the station need not broadcast the name of the manufacturer, vendor or service provider itself. Yet, in this case, the ad for the products sold by the Cigarette Outlet, and the description of the services that they provided (the sale of the products advertised), was apparently not enough to meet the sponsorship identification rules, at least in the eyes of the FCC’s Enforcement Bureau. So that only conclusion that seemingly can be drawn from this decision is that, if a business has the word “cigarette” in its name, a station is on very dangerous ground trying to advertise any of the products available in the store. Based on this decision, proceed with caution in airing similar ads.