The Clinton administration is out to put constraints on the advertising of cigarettes. The tobacco industry is protesting: it's unconstitutional and it's unnecessary. Unconstitutional because of the first amendment; unnecessary because they are not really leading anyone astray. I'll leave it to the constitutional scholars whether banning some pictures of vibrant and nubile beauties with cigarettes in their mouths is an infringement of the first amendment rights of the tobacco companies and their advertising agencies. But as for the industry's protestations that the advertisements are harmless, I don't believe that for a second. In recent years, as American society has mobilized against the evils of addiction to nicotine, the tobacco industry and its hired guns have hurried to assure us that their marketing efforts are innocuous. We are not trying to create new customers, they claim, even though they lose a thousand customers a day to death from smoking-related diseases. The advertisements, they maintain, are merely the way different companies compete for existing customers. Each company is simply trying to get the customers of other brands to switch to their own, we're supposed to believe. And therefore there is no public policy justification for interfering with the free play of such commercial speech. Is this argument credible? To see through their claims, there's no need to raise the issue of the industry's general credibility. Forget that these are the folks who have been telling us for three decades that there is no clear link between smoking and cancer or heart disease, despite mountains of scientific evidence to the contrary. Forget that these guys still maintain that nicotine is not an addictive drug, despite the experts' testimony that this habit is harder to break than heroin addiction. Think of it this way: if their argument were true, if all they were doing was competing for existing customers, then the industry would welcome the government's curtailing this competition. If all they think they are doing is fighting over a fixed and finite number of customers, then their battle is an expensive, zero-sum struggle, in which the industry as a whole has significant costs (over $3 billion a year) but no gains. If that were so, then like nations in a costly arms race that can increase no one's overall security, these companies would be stupid to oppose a treaty that would terminate their fruitless expenditures. From the fact that the companies all want their advertising to continue unimpeded, one can conclude that either their protestations are lies or that these companies are foolish. Whatever other shortcomings the tobacco industry has manifested, folly in figuring out where their own self-interest lies is not one of them. If they are not fools, we would have to be fools to believe them. The inference is clear: the tobacco companies believe their ads are effective in persuading non-smokers to begin smoking.

Andrew Bard Schmookler is the author of The Illusion of Choice: How the Market Economy Shapes Our Destiny, published by SUNY Press. ??