District Court Strikes Down Some Tobacco Act Provisions as Unconstitutional

By David B. Clissold –

Acting on cross motions for summary judgment, a Federal District Court in Kentucky has struck down some provisions of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”) as unconstitutional, and upheld others.  As we had reported earlier, the plaintiffs originally argued that portions of the Act violated their free speech rights under the First Amendment; their due process rights under the Fifth Amendment; and effected an unconstitutional “taking” of property under the Fifth Amendment.  For reasons that are not clear, the plaintiffs apparently abandoned most of their Fifth Amendment claims during the course of the proceedings.  Thus, the decision primarily concerned free speech.

Unconstitutional As A Violation Of Free Speech Under The First Amendment

The Tobacco Act provides that labeling or advertising for cigarettes or smokeless tobacco must use only black text on a white background.  The court held this portion of the law unconstitutional since “images of packages of their products, simple brand symbols, and some uses of color communicate important commercial information about their products” such as who makes the product.  In addition, the Tobacco Act's “blanket ban” on all uses of color and images was too broad since it also precluded use of “innocuous images and colors – e.g., images that teach adult consumers how to use novel tobacco products, images that merely identify products and producers, and colors that communicate information about the nature of a product . . .”

The Tobacco Act prohibits any statement in labeling or through the media suggesting that the product was approved by FDA, that FDA deems the product to be safe, or that FDA endorsed the use of the product.  The court held that these prohibitions were reasonable.  However, the law also banned statements suggesting that “the product is safe or less harmful” because it was regulated or inspected by FDA or that it was in compliance with FDA regulations.  This was held to be unconstitutional since it banned “journalists, doctors, scientists, politicians, and numerous other groups and individuals” from making statements about the effect of the FDA regulation of tobacco products.

Too Early To Tell Whether Constitutional Under The First Amendment

The Tobacco Act bans all “outdoor advertising for cigarettes or smokeless tobacco, including billboards, posters, or placards, . . . within 1,000 feet of the perimeter of any public playground or playground area in a public park . . ., elementary school, or secondary school.”  However FDA must issue a regulation “in light of governing First Amendment case law,” explaining how this ban will be enforced before it can take effect.  The court held it could not examine this issue until FDA had issued the final regulation.

Constitutional Under The First Amendment

The Tobacco Act requires tobacco companies to print new government warnings for cigarette packages that occupy the top 50% of the front and rear panels of packaging and include “color graphics depicting the negative health consequences of smoking to accompany the label statements.” Similar warnings, occupying 30% of each of the two principal display panels, are required for smokeless tobacco products.  For all categories of tobacco products, the new warnings must occupy 20% of any advertisements.  The court held that such requirements were reasonable in part because Congress “relied on the international consensus reflected in the World Health Organization’s Framework Convention on Tobacco Control” and also reviewed “the use of a nearly identical warning requirement in Canada.”  The court also noted that even with the warnings, a substantial amount of area remained for use by the manufacturers.  However, the court ruled that the plaintiffs’ takings claim under the 5th Amendment needed to be brought in the Court of Federal Claims, and so the court lacked jurisdiction to decide that issue.

Manufacturers can not promote their brands through sponsorship of “athletic, musical, artistic, or other social or cultural event[s]” and FDA must reissue regulations that prohibit the sponsorship of athletic, social, and cultural events “in the brand name” of a tobacco product.  The court found because such events “glamorized” smoking and that many children were exposed to the events, the limitations on sponsorship were permitted.  The law also directs FDA to reissue regulations that prevent a tobacco manufacturer from distributing items such as caps and t-shirts that bear the name or logo of a tobacco brand.  The court agreed that it was impossible to limit the distribution of these items to adults only and noted that even if it was, the wearers would become “walking advertisements” conveying the notion “that tobacco use is widely accepted.”  Accordingly, the court held that the ban on such items was constitutional. With respect to the law's ban on free samples, gifts with purchase, and marketing tobacco products with non-tobacco products, the court held that these provisions restricted distribution, but did not implicate free speech rights.

The Tobacco Act’s Modified Risk Tobacco Products (“MRTP”) provision prohibits the labeling, or advertising of a tobacco product from suggesting that the product is less harmful than other tobacco products, and prohibits manufacturers from taking any action that would be reasonably expected to result in consumers believing that the tobacco product or its smoke may be less harmful than other tobacco products, without prior FDA approval of the product as “modified risk.” The plaintiffs had already lost a motion for a preliminary injunction in November 2009 that this law violated free speech.  None of the arguments presented subsequently were enough to change the court’s mind.

Conclusion

Both sides can claim at least partial victory under this decision, and it is not yet clear whether any of the parties will appeal any portion of the ruling.  In upholding many of the challenged provisions of the Tobacco Act, the court relied on Congressional findings and reports from the Institute of Medicine, World Health Organization, National Cancer Institute, and other organizations that focused on the effect that tobacco advertising may have on underage smoking.  The court agreed that preventing children from smoking was a “substantial” government interest, and found that most of the Tobacco Act’s provisions controlling the advertising and promotion of cigarettes and smokeless tobacco were directly related to promoting that interest.  Aside from any appeal in this case, the next significant challenge is likely to be whether FDA’s regulation to control outdoor advertising passes constitutional muster.