By Ricardo Carvajal –
A divided 6th Circuit panel affirmed a lower court’s ruling that some provisions of the Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”) are unconstitutional, but others are not. As we noted in a prior posting, a federal district court ruled in November 2009 that certain provisions of the Tobacco Act violated the First Amendment, namely (1) the mandate that cigarette and smokeless tobacco labeling and advertising use only black text on a white background, and (2) the prohibition on statements suggesting that a tobacco product is safe or less harmful because it is regulated or inspected by FDA, or is in compliance with FDA regulations. The 6th Circuit affirmed the first of these determinations, but reversed the second on the ground that the prohibition does not extend to non-commercial speech (e.g., speech by journalists, scientists, and politicians) and therefore should not have been analyzed under strict scrutiny. Rather, the prohibition extends only to commercial speech that the court deemed “inherently misleading and patently false,” and therefore not entitled to First Amendment protection.
In its November 2009 decision, the district court also ruled that certain provisions of the Tobacco Act did not violate the First Amendment, namely (1) the required warnings on cigarette and smokeless tobacco packages, including “color graphics depicting the negative health consequences of smoking,” (2) the restrictions on distribution of samples, continuity programs, and promotion of brands through event sponsorship and merchandise, , and (3) the prohibition on labeling or advertising claims suggesting reduced risk in the absence of FDA approval as a modified risk tobacco product. The 6th Circuit affirmed all of these determinations, with one exception: the restriction on continuity programs (i.e., “the distribution of free gifts in consideration for a tobacco purchase”) was deemed overbroad.
The three-judge panel split on the question of the constitutionality of the color graphics requirement. Applying Zauderer’s rational basis standard, the majority concluded that the requirement is constitutional “[b]ecause graphics can present factual information regarding the health risks of using tobacco, and because this information alleviates the possibility of consumer confusion.” The dissent demurred, citing the recent D.C. district court decision finding that the graphic images selected by FDA for inclusion in its final rule are “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking” (see our prior posting on that decision here). However, as noted by the majority, the selection of those images took place after the district court’s grant of summary judgment in the instant case.
There are numerous other points of difference between the majority and concurring/dissenting opinions rendered by the panel. Those differences, together with differences between the 6th Circuit and D.C. district’s First Amendment analyses, suggest that the Supreme Court will have the opportunity to opine on the constitutionality of the Tobacco Act before too long. We note that the D.C. district court decision has been appealed to the D.C. Circuit, which is scheduled to hold oral argument on April 10th.