Advertising Groups Back ‘Graphic Warnings’ Challenge

Issue friend-of-the-court brief noting “slippery slope”

WASHINGTON -- Three major advertising industry groups are urging the U.S. Supreme Court to hear an appeal of a key First Amendment case challenging the advertising restrictions in the Family Smoking Prevention and Tobacco Control Act of 2009.

The U.S. Court of Appeals for the Sixth Circuit upheld certain advertising restrictions in a March 2012 decision. A group of tobacco companies has asked the Supreme Court to review and reverse that decision. A "friend of the court" brief was filed by the Association of National Advertisers (ANA), the American Advertising Federation and the American Association of Advertising Agencies, urging the Supreme Court to accept the appeal.

"We are very hopeful that the Supreme Court will agree to hear an appeal of this important case. The Tobacco Control Act contains the most burdensome marketing restrictions ever passed by Congress for a legal product,” said Dan Jaffe, ANA's group executive vice president for government relations. “Today the issue is tobacco advertising, but there are numerous other products for which this law could set very dangerous precedents."

The lawsuit challenging the marketing restrictions was filed by six major tobacco companies in the U.S. District Court for the Western District of Kentucky. In a 2010 decision, that court held that the Tobacco Control Act's ban on colors and images in ads was unconstitutional. However, the court upheld other speech restrictions, including broad bans on sports, cultural and other sponsorships, and a requirement of new graphic warnings. ANA filed "friend of the court" briefs with both the District Court and the Court of Appeals in regard to this case.

Jaffe noted that ANA has also been very active in a separate lawsuit challenging one part of the Tobacco Control Act, the graphic warnings rule that was implemented by the FDA in 2011.

"The U.S. Court of Appeals for the District of Columbia has come to a very different conclusion from the Sixth Circuit on the First Amendment defects with the act,” Jaffe said. “On Aug. 24, that court vacated the FDA's graphic warnings rule, concluding that it would turn product packages and ads into miniature billboards for the government's desired messages. These two cases are intertwined and at constitutional odds.”

Jaffe concluded, "We have been very active in the courts for over two decades to protect the rights of all marketers. History shows that there is a wide range of products about which some believe 'the government knows best.' That is precisely the kind of paternalism that the First Amendment does not permit."

The industry brief was written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP.

Founded in 1910, the ANA (Association of National Advertisers) leads the marketing community by providing its members with insights, collaboration and advocacy. ANA's membership includes 450 companies with 10,000 brands that collectively spend over $250 billion in marketing communications and advertising.