Tobacco Industry Lawsuit Hearing Held

Circuit Court hears arguments on FDA tobacco regulations

Thomas A. Briant, NATO Executive Director

On Wednesday, July 27th, the U.S. Circuit Court of Appeals held a hearing on the appeal of a tobacco industry lawsuit against the FDA, which seeks injunctive relief including numerous constitutional declarations, as follows:

The new cigarette text and graphic health warnings are unconstitutional and violate the free speech rights of the plaintiffs.
The outdoor advertising ban on cigarettes, roll-your-own tobacco and smokeless tobacco products is unconstitutional.
The bans on brand name sponsorship of events, promotional items with a brand name or logo and distributing a free [image-nocss] gift with a purchase of tobacco products are unconstitutional.
The authorization allowing local and governments and other federal agencies to adopt a more restrictive rule, regulation or law further restricting or prohibiting the promotion and sale of tobacco products is unconstitutional.

NATO retailer Discount Tobacco City & Lottery Inc., R.J. Reynolds Tobacco Co., Lorillard Inc., National Tobacco Co. and Commonwealth Brands filed this lawsuit in September of 2009 against the FDA. While the federal district court overturned the ban on color advertising as a result of this lawsuit, the district court judge's decision upheld the other restrictive provisions listed.

The majority of the claims that are on appeal focus on the First Amendment free-speech rights of the industry, and how the FDA regulations restrict or prohibit the exercise of these free-speech rights. The U.S. Supreme Court has ruled that the First Amendment free-speech protections extend to commercial speech in the form of advertising. Since the manufacturer tobacco packaging and outdoor advertising are means of communicating to adult consumers, the plaintiffs argue that these additional restrictions, such as the graphic warning labels, the outdoor advertising ban, the ban on event sponsorship and the authorization for even more regulations and laws on the local, state and federal agency levels displace brand names, brand logos and other forms of protected advertising.

The U.S. Circuit Court of Appeals may take several months to issue a ruling on this appeal.