Smoke out your ad policy

Folio: The Magazine for Magazine Management, Feb, 2002

As the debate over the media's role in tobacco advertising has intensified in recent years, more and more publishers have turned their backs on cigarette ad dollars. But ethical concerns aside, do publishers have a legal leg to stand on when it comes to saying no to a potential client? Can a publisher refuse any advertiser he wants to?

Generally, the courts have allowed magazines some leeway here, answers Lawrence Savell, an attorney with Chadbourne & Parke LLP. For example, publishers can avoid potential liability by rejecting ads that practice the "bait-and-switch" method, that make competitive statements widely acknowledged to be unfair or inaccurate, or that promote illegal or harmful activities or substances. But a would-be advertiser may have a claim against a magazine if a publisher's refusal to sell space breaches a prior agreement or is found to be anticompetitive or discriminatory.

To protect their legal interests, Savell suggests that publishers post a notice in their magazines and media kits stating that the title reserves the right to accept or reject ads at the staff's discretion. But most important, he says, "each publisher needs to decide for himself what is the most appropriate course to follow here, given the magazine's (and possibly its readers') viewpoints and preferences and its economic priorities and realities."