The statute that led the federal government to propose new graphic cigarette warning labels is probably headed for the Supreme Court. In a 2-1 decision, the Sixth Circuit Court of Appeals in Kentucky upheld much of the Family Smoking Prevention and Tobacco Act that gives the U.S. Food and Drug Administration the authority to restrict the marketing and advertising of tobacco products.
Although the Sixth Circuit upheld much of statute, the U.S. District Court for the District of Columbia last month ruled the government's specific execution of graphic warning labels was unconstitutional because it violated free speech under the First Amendment.
The Sixth Circuit was mixed on other provisions in the 2009 Act. There was good news for tobacco companies in that the court ruled it was unconstitutional for the rules to ban the use of color or pictures in advertising, calling such a restriction "overbroad." However, it upheld the Act's marketing ban on sponsorships, sampling and brand merchandising even to adults.
"We are pleased the Sixth Circuit Court of Appeals upheld the continued use of colors and imagery in our advertisements. It's important to note that the court, in a split decision, only held that graphic warnings could legally be displayed on cigarette packaging and advertisements. This court did not address the constitutionality of the nine graphic images the FDA seeks to impose. Those nine warnings have been found unconstitutional by the Federal District Court in Washington, D.C. We continue to review the ruling and are considering next steps," said a spokesman for R.J. Reynolds Tobacco Co. in an emailed statement.
R.J. Reynolds was one of five tobacco companies that brought suit against the Act, claiming it violated their free speech rights under the First Amendment. The case was brought before the government unveiled the nine proposed labels that were challenged in a separate lawsuit.
Advertisers, which filed an amicus brief in the case, found the Sixth Circuit's decisions on marketing and advertising troubling overall. "It has serious implications beyond tobacco," said Dan Jaffe, executive vp of the Association of National Advertisers. "If the federal government can regulate marketing of a legal product, they can do it to other legal products as well."
Both the government and the tobacco companies are likely to appeal. "The case is almost certain to go up to the Supreme Court, possibly consolidated with the proposed graphic warnings," Jaffe predicted.