Advertisers Urge Supreme Court to Hear Tobacco Ad Case

Chances for appeal are good

The Supreme Court may be the next stop for advertisers fighting against the government's proposal to force tobacco companies to place graphic warning labels on cigarette packages. The Association of National Advertisers, along with the American Association of Advertising Agencies and the American Advertising Federation, filed a "friend of the court" brief today urging the highest court in the land to accept the appeal of a group of tobacco companies that have been duking it out with the government in the lower courts.

So far, through a number of court actions, tobacco companies and advertisers have managed to halt the implementation of the warning labels, which advertisers characterized as nothing less than mini-billboards because they took up more than half of the cigarette pack.

"The Tobacco Control Act contains the most burdensome marketing restrictions ever passed by Congress for a legal product. Today the issue is tobacco advertising, but there are nuerous other products for which this law could set very dangerous precedents," said Dan Jaffe, the ANA's executive vp of government relations.

Advertisers like their chances that the Supreme Court will decide to take what could be a landmark First Amendment case.

"Any time a court strikes down a provision of federal law, there is a better than even chance the court will hear the case," said First Amendment attorney Bob Corn Revere, a partner with Davis Wright Tremaine who wrote the brief.

Two lower courts have ruled on different aspects of the Family Smoking Prevention and Tobacco Control Act of 2009, putting the cases at constitutional odds. In August, the U.S. Court of Appeals in Washington upheld a lower court ruling that the warning labels ran afoul of the First Amendment. But in March, a federal appeals court in Cincinnati ruled the statutory law was constitutional. Tobacco companies have filed with the Supreme Court asking that the decision be reversed.

The earliest the Supreme Court could decide to hear the case would be first quarter next year, with briefings and oral arguments following next fall.