CINCINNATI -- The U.S. Court of Appeals for the Sixth Circuit in Cincinnati ruled Monday on a tobacco industry challenge to several provisions in the 2009 Family Smoking Prevention & Tobacco Control Act, upholding the constitutionality of graphic warning labels--which include a sewn-up corpse of a smoker and a picture of diseased lungs--that would cover half of cigarette packages.
"The warning labels required by the act do not impose any restriction of plaintiffs' dissemination of speech," the court said. "Instead the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco."
The court also upheld the constitutionality of provisions regulating modified risk products, bans on free tobacco samples and the distribution of branded nontobacco products and event sponsorships. The court also found constitutional a provision that would preclude industry claims that a product is safe or less harmful as a result of FDA regulation.
The only major provision found to be unconstitutional was the so-called "tombstone" ad requirements that would have prohibited the use of color or graphics in tobacco product labeling and advertising.
Click here to view the full court document.
Watch for more analysis of the decision in Tobacco E-News and CSP Daily News (and click here for previous coverage).
As reported in a Morgan Keegan/CSP Daily News Flash yesterday, tobacco companies including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. questioned the constitutionality of the labels, saying the warning labels do not simply convey facts to inform people's decision whether to smoke, but instead force the cigarette makers to display government anti-smoking advocacy more prominently than their own branding.
The FDA has said that the public interest in conveying the dangers of smoking outweighs the companies' free-speech rights.
U.S. District Judge Richard Leon in Washington ruled in late February that the federal mandate to put the images on cigarette packs violates the Constitution's first-amendment guarantee of freedom of speech.
The FDA has appealed Leon's decision. The case will be held in the U.S. Court of Appeals for the Washington, D.C., Circuit next month.
The appellate case is Discount Tobacco City & Lottery Inc. v. U.S., 10-5234 and 10-5235, U.S. 6th Circuit Court of Appeals (Cincinnati). The Washington case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-cv-1482, U.S. District Court, District of Columbia (Washington).
Click here to view the FDA cigarette warning labels.
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