FSPTCA Upheld in the Sixth Circuit Court of Appeals

A number of marketing and advertising limitations in the new law are currently being challenged in court. The tobacco industry filed suit in August of 2009 claiming that certain marketing and advertising restrictions in FSPTCA violate their constitutional right to free speech. The American Cancer Society and the American Cancer Society Cancer Action Network (ACS CAN) filed amicus briefs at the trial court and in the Sixth Circuit seeking to uphold the restrictions, arguing that the court cannot decide the constitutionality of the FDA‰'s restrictions without understanding the public health imperative that lies at the heart of FSPTCA. We cited statistics associated with tobacco-related illness that justify the FDA‰'s restrictions on the industry. At the trial level, United States District Court Judge Joseph McKinley, Jr. issued a ruling in March of 2010 that largely upheld FSPTCA. In Commonwealth Brands, Inc. v. United States now titled Discount Tobacco City & Lottery ‰Judge McKinley upheld a number of provision of FSPTCA, including:

• The requirement that large, graphic health warnings be put on cigarettes packs.
• A ban on tobacco companies making health claims about tobacco products without FDA review.
• Bans on several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco branded merchandise such as caps and t-shirts, free samples of tobacco products and free gifts with purchase.

Unfortunately, Judge McKinley struck down two provisions as infringing on the tobacco industry‰'s First Amendment rights, citing the Reilly decision. These provisions are:

• A complete ban on the use of color and imagery in tobacco advertising in publications viewed by large numbers of youth; though the court's decision would appear to allow some restrictions on color advertising in publications with high youth readership.
• The prohibition on claims implying that a tobacco product is safer because of FDA regulation.

Both sides appealed different aspects of the decision. In April of 2012, in a great victory for public health, the Sixth Circuit Court of Appeals upheld all of the restrictions on tobacco marketing and advertising except for the complete ban on color imagery. It also reversed the trial judge's ruling that struck down the ban on claims implying that tobacco products are safer due to FDA regulation. In other words, all aspects of the law were upheld except for the ban on color imagery. Also of note, FDA currently does not regulate outdoor advertising, due in part to ongoing analysis of the decision in Lorillard. The FDA has initiated a rulemaking process on this issue, but it remains unclear how the restrictions will be addressed. Update: The tobacco industry appealed the decision to the Supreme Court of the United States, which declined to hear the case, leaving our victory intact.