Last week, a NATO retail member contacted the NATO office and asked if the new FDA cigarette text health warnings and graphic pictures were required to be included in a retailer's cigarette price menu sign posted in a store, which may, for example, list the name of the cigarette, show a logo or picture of the cigarette brand and list the price of the cigarettes.
With two separate lawsuits pending that challenge the FDA's new text and graphic warning labels for cigarette packaging and advertisements, and the effective date to include the new warnings on packages and advertisements being September 2012, the retailer's question is very timely.
As a part of the ongoing litigation, Federal District Court Judge Richard Leon issued an order on Feb. 29, 2012, prohibiting the FDA from implementing the new text and graphic warning labels against the plaintiffs (the companies that filed the lawsuit against the FDA). The court's order extended this prohibition for a period of 15 months from the date that the FDA issues a new set of health warnings that comply with constitutional standards. (A copy of this federal court order accompanies this article.)
In addition, the FDA published an announcement on Feb. 24, 2012, which states that due to the litigation, the implementation date for the new text and graphic health warnings is "uncertain." (A copy of this announcement also accompanies this article.) This announcement goes onto state that cigarette packaging and advertisements need to continue to have the appropriate Surgeon General health warnings that were in place before Congress passed the law in 2009 authorizing the FDA to regulate cigarettes, roll-your-own (RYO) tobacco and smokeless tobacco products.
Finally, Section 1140.30(a)(1) of the FDA's Final Rule that became a part of the law authorizing the agency to regulate cigarettes, RYO tobacco and smokeless tobacco, states that retailers are allowed to include in tobacco advertisements a brand name and other tobacco product identification such as a picture of a package or a brand logo on posters, placards, in promotional material, and in point-of-sale promotional advertising. This section reads as follows:
Sec. 1140.30(a)(1): Scope of permissible forms of labeling and advertising.
A manufacturer, distributor, or retailer may, in accordance with this subpart D, disseminate or cause to be disseminated advertising or labeling which bears a cigarette or smokeless tobacco brand name (alone or in conjunction with any other word) or any other indicia of tobacco product identification, in newspapers; in magazines; in periodicals or other publications (whether periodic or limited distribution); on billboards, posters, and placards; in nonpoint-of-sale promotional material (including direct mail); in point-of-sale promotional material; and in audio or video formats delivered at a point-of-sale.
In short, the court order, the FDA's announcement and Section 1140.30 of the FDA Final Rule mean that (1) the FDA will not be allowed to enforce the text and graphic health warning label requirements against the five major cigarette manufacturer plaintiffs until the litigation is resolved, (2) there is no date certain for the FDA to enforce the text and graphic health warning label requirements against other manufacturers, distributors or retailers and (3) that retailers are allowed to advertise cigarettes, RYO tobacco and smokeless tobacco by including brand names and brand logos on price advertising signs.
Members help make our journalism possible. Become a CSP member today and unlock exclusive benefits, including unlimited access to all of our content. Sign up here.