Following a federal court decision that graphic warning labels were unconstitutional, an appellate court has ruled that requiring cigarette warning labels are not a violation of free speech, rather they fall under commercial speech disclosures, are disclosing the health risks of cigarettes and are reasonably related to the government’s interest of preventing the deception of consumers.
The U.S. Court of Appeals for the Sixth Circuit issued a ruling on the appeal of a 2009 lawsuit challenging numerous FDA tobacco regulations, the National Association of Tobacco Outlets (NATO) reported.
This first lawsuit was filed by NATO retail member Discount Tobacco City and Lottery, Inc., R.J. Reynolds Tobacco Co., American Snuff Co., formerly known as Conwood Co. LLC, Commonwealth Brands Inc., Lorillard Inc., and National Tobacco Co. against the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration (FDA) seeking to protect the constitutional right of tobacco manufacturers and retailers to communicate to adults about tobacco products.
Legal Claims in First Lawsuit
There were numerous claims in the first lawsuit challenging the following FDA regulations passed by Congress and signed into law by President Obama:
1. Banning the use of color and graphics in most cigarette and smokeless tobacco product advertising and requiring only the use of black text on a white background.
2. Prohibiting outdoor cigarette and smokeless tobacco advertising within 1,000 feet of schools and playgrounds.
3. Requiring color graphic health warnings and text statements on 50% of the front and back of cigarette packages and cigarette cartons.
4. Banning the use of cigarette and smokeless brand names in the sponsorship of athletic, artistic, musical and other social events.
5. Disallowing the use of cigarette and smokeless tobacco brand names on merchandise.
6. Prohibiting free gifts with the sale of these tobacco products.
7. Outlawing the sampling of cigarettes and only allowing the sampling of smokeless tobacco products in an adult only facility.
Sixth Circuit Court Decision
On Jan.4, 2010, the federal district court judge hearing this initial lawsuit issued a decision that overturned both the ban on the use of color and graphics in advertisements and the black text on a white background requirement, postponed any ruling on the outdoor advertising ban until the FDA issues a final regulation conforming the ban to Supreme Court decisions limiting ad bans, upheld the requirement for graphic image and text warning statements on cigarette packaging, and denied the challenges to banning brand name sponsorships, disallowing brand names on merchandise, prohibiting free gifts with the sale of tobacco products, and outlawing sampling.
A three-judge panel of the Sixth Circuit Court of Appeals has agreed with the federal district court decision on the seven challenges listed above. That is, the Court of Appeals ruling upheld (1) the overturning of the use of color in advertisements and the black text on white background requirement, (2) the postponement of a ruling on the outdoor advertising ban, (3) the mandate for color graphic and text warning labels on cigarette packaging, (4) the ban on using brand names for sponsorships, (5) the prohibition on printing brand names on merchandise, (6) the ban on free gifts, and (7) the prohibition on sampling except for smokeless products in an adult only facility. However, on the issue of the mandate for color graphic and text warning labels on cigarette packaging, the three judges split with two in favor of the mandate and one dissenting on the mandate.
Reasoning Behind Sixth Circuit Decision
The decision issued by the U.S. Court of Appeals for the Sixth Circuit is 84 pages long and includes a lengthy analysis of the court’s reasoning. One reason for the decision is that the court afforded substantial deference to the judgments made by Congress in passing the FDA tobacco regulations and the evidence relied on by Congress in forming its legislative decisions. Another reason advanced for upholding the regulations, in particular the graphic health warnings, is that the federal government argued an information deficit exists, especially among youth, about the danger of tobacco use.
Moreover, as to upholding graphic image health warnings on cigarette packaging, the Circuit Court determined that these warnings are commercial speech disclosures and not compelled speech, which the Supreme Court has found to be presumptively unconstitutional. That is, two of the three Circuit Court judges believe that the graphic warnings are disclosing the health risks of cigarettes and are reasonably related to the government’s interest of preventing the deception of consumers.
The Second Lawsuit
In August of 2011, just two months after the FDA released the rule mandating nine specific color graphic images and text statement health warnings for cigarette packaging, five tobacco manufactures filed a second federal lawsuit against the FDA challenging the constitutionality of the health warnings as impermissible compelled speech. This second lawsuit has resulted in two rulings by the federal district court judge in favor of the industry including a temporary injunction against the enforcement of the FDA’s new graphic image warnings and a decision on the merits of the case that the mandated graphic image warning labels are unconstitutional compelled speech.
The main difference between these two lawsuits on the graphic image health warnings is that the first lawsuit focused on the size of the graphic images while the second lawsuit concentrated on the federal government’s mandate requiring the manufacturers to provide non-factual and controversial information through the use of shocking graphic images. When the government mandates that a company make a statement about its products that the corporation would otherwise not make if given a choice, then the law requiring the statement alters the content of this “speech.” This is known as “compelled speech” and the Supreme Court has ruled that this form of speech is presumptively unconstitutional.
Procedural Next Steps
The NATO retail member and the other manufacturer plaintiffs can appeal the above decision by the Sixth Circuit appeals court to the U.S. Supreme Court. On April 10, 2012, the U.S. Court of Appeals for the District of Columbia is scheduled to hear an oral argument on the FDA’s appeal of the temporary injunction ruling and the decision on the merits in the second federal lawsuit. When the District of Columbia appeals court issues a decision, either the five manufacturer plaintiffs or the FDA can appeal that ruling to the U.S. Supreme Court.