A ruling filed January 5 brought injunctive relief in a struggle over color and graphics in tobacco advertising. The ruling follows and August complaint brought by Commonwealth Brands Inc., Conwood Co. LLC, Discount Tobacco City& Lottery Inc., Lorillard Tobacco Co., National Tobacco Co. LP and R.J. Reynolds Tobacco Co.
In the ruling, [image-nocss] Joseph H. McKinley Jr., a federal district-court judge in Kentucky, concluded that a ban on color and graphics in advertising (outlined in last year's Family Smoking Prevention & Tobacco Control Act) "fails review" due to the sweeping nature of the "blanket ban." McKinley agreed that the plaintiffs were "clearly right" that some images and use of color can communicate important commercial information.
The ruling also addressed a ban on mentioning the U.S. Food & Drug Administration's regulation of tobacco products, calling it "facially unconstitutional." That ruling could be a boon for smokeless-tobacco manufacturers, with studies backing that those products show reduced long-term user risk.
Other provisions of the law were upheld by Mckinley, however, including the requirement that health warnings that cover the top 50% of the front and rear panels of packaging. McKinley also upheld bans on brand-name event sponsorships and merchandise.
In a press release issued by tobacco manufacturer Commonwealth Brands, Rob Wilkey, senior legal counsel, stated that the company was "delighted" with the ruling. "We have always strongly believed that the advertising ban violated our First Amendment rights and are very pleased that the court agreed," he said. "It is a fundamental right that we be able to communicate with our adult consumers, and today's ruling will ensure this."
Thomas Briant, executive director of the National Association of Tobacco Outlets (NATO), also expressed approval of the advertising ruling. "The law was certainly on the industry's side regarding the ban on color advertising of tobacco products," he told CSP Daily News, adding that prior Supreme Court decisions "set a precedent that a government cannot ban advertising of tobacco products."
Discussion of an appeal has already surfaced, in the form of a statement from the Campaign for Tobacco-Free Kids, American Cancer Society, American Cancer Society Cancer Action Network, American Heart Association, American Lung Association and American Legacy Foundation. The rulings on color and imagery in advertising and on statements that a product is safer than others are "disappointing," according to a statement from the groups. "We believe that the judge's conclusions on these two provisions are based on a misinterpretation of the law and strongly urge the government to appeal."
Meanwhile, a second legal challenge was filed Dec. 28, 2009, by U.S Smokeless Tobacco Manufacturing Co. LLC and U.S. Smokeless Tobacco Brands Inc. (USST), both Altria subsidiaries. The companies seek to enjoin the City of New York from imposing tobacco product standards for smokeless and certain other types of "flavored tobacco products," as outlined in an ordinance signed into law by Mayor Michael Bloomberg on Oct. 28, 2009. The ordinance bans all "flavored tobacco products," which are defined as all tobacco products, other than cigarettes, that contain a constituent or additive that imparts a "characterizing flavor," other than tobacco, menthol, mint or wintergreen.
Ironically, the lawsuit cites the Family Smoking Prevention& Tobacco Control Act in USST's defense. "FDA is the only agency with the right combination of scientific expertise, regulatory experience and public-health mission to oversee these [tobacco] products effectively," the lawsuit states, quoting the Act.
Briant was not surprised by the lawsuit, and in fact had warned New York City council members of the possibility in a July letter. "We told them they were going to get sued," he said, reiterating that the proposed ban was superceded by the new FDA regulations. "The city-elected officials simply do not understand that they have overstepped their authority by adopting such a broad and sweeping ban on flavored tobacco products. Moreover, the ban does violate the commerce clause of the U.S. constitution, which grants only Congress the powers to make laws that impact interstate commerce."
Briant also outlined another concern that makes the impending ruling so important. "This could be utilized or seen as a stepping stone by anti-tobacco advocates in other parts of the country to adopt a similar flavored-tobacco prohibition law," he says. "I have seen new anti-tobacco strategies adopted on the East or West Coast and then move inward covering other states, so all retailers across the country should be very concerned about this New York City ban."
In a third legal action, Kretek International Inc., importer and marketer of Djarum clove cigars, withdrew its lawsuit yesterday against the FDA regarding the distribution and sale of clove cigar products. (For more details, see a related story in the issue of CSP Daily News.)
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