Court backs some tobacco ad bans, nixes others

Appeals are expected from both sides, but the ruling suggests the FDA can fix marketing restrictions found to violate free speech rights.

By Amy Lynn Sorrel — Posted Jan. 25, 2010

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A recent federal court decision moved public health advocates several big strides forward and a couple of steps back in their effort to defeat a free speech challenge to new Food and Drug Administration restrictions on tobacco advertising.

In a Jan. 5 ruling, the U.S. District Court for the Western District of Kentucky upheld most of the provisions in the federal Family Smoking Prevention and Tobacco Control Act that it said validated the government's interest in protecting consumers from misleading tobacco claims. The law, enacted in June 2009, gave the FDA authority to regulate tobacco for the first time.

Among the restrictions upheld by the court were a requirement for larger warning labels and a ban on the sale of modified-risk, or "light," products without prior FDA approval.

But the court took issue with the constitutionality of what it said were two overly broad provisions -- one prohibiting the use of color and graphics on advertisements and the other banning statements implying that FDA regulation of tobacco products makes them less harmful.

Two of the nation's largest cigarette makers -- R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. -- joined by other manufacturers and retailers, sued the FDA in August 2009. They alleged the various advertising restrictions violated their First Amendment rights to market their products to adults. The companies are not contesting the FDA's regulatory authority nor its restrictions on advertising to children.

Both sides are expected to appeal to the 6th U.S. Circuit Court of Appeals, with public health advocates urging the FDA to continue the fight.

"The more that is upheld, the more the FDA can accomplish," said Allison M. Zieve, director of Public Citizen's litigation group. The consumer watchdog joined the Litigation Center of the American Medical Association and State Medical Societies and nearly a dozen other medical and public health organizations in filing a friend-of-the-court brief in the case.

Public health advocates were particularly disappointed by the court's rejection of the ban on the use of color and images, "which has a much bigger effect on youth than it does adults," Zieve said.

Nevertheless, the ruling still offers some encouragement and gives the FDA room to fix the questionable provisions to address the court's concerns, said Eric Lindblom. He is director for policy research at the Campaign for Tobacco-Free Kids, which also helped file the brief.

"The decision makes it very clear that the law has legitimately given FDA extensive power to regulate and restrict tobacco marketing, right up to the limits of the First Amendment," Lindblom said. "No matter what else the courts rule, FDA will always have power to come back and either tweak the restrictions or come up with absolutely new ones, ... and the court at this level gave clear guidance as to what needs to be done to make it constitutional."

The FDA and tobacco companies both claimed partial victories and said they were reviewing the opinion. Lorillard and R.J. Reynolds specifically praised the court's decision upholding use of color and graphics in advertising.

"This enables us to compete more effectively for adult consumers, which is our business. And doing that to the best of our ability gives them more options, for example, in the form of smoke-free products," R.J. Reynolds spokesman David Howard said.

But while the ruling may allow companies to acknowledge that their products are FDA-regulated, it still constrains them from discussing any related health claims and engaging in such a debate publicly, Howard said. "The public health community can talk all they want, and we can't participate in the discussion in any form or fashion."

Room for improvement

In upholding a substantial portion of the federal restrictions, the court also affirmed what Zieve said were other key deterrents to youth tobacco use, including bans on event sponsorship and merchandise branding by tobacco companies.

The court agreed with the government that branding techniques incorporating color and graphics can appeal to youth. "Tobacco companies know this well," District Judge Joseph H. McKinley Jr. wrote. Nevertheless, companies "are clearly right" that in certain instances, the tactics may have informational value, he said.

Congress could have exempted certain categories of innocuous images and colors that merely identify products and communicate information about the nature of a product, but "the act's 'blanket ban' ... has a uniformly broad sweep ... [that] demonstrates a lack of tailoring," the court concluded.

In addition, restrictions on claims about the effect of FDA tobacco safety regulation could be interpreted as attempting to chill public discourse by the medical and scientific community, politicians and the media, rather than narrowly limiting manufacturers' commercial speech directed at consumers, the court found.

Lindblom said the FDA could use the rule-making process to clarify the restrictions further, though he expects them to survive on appeal. Regardless of what tobacco companies can or can't do, "there is no First Amendment protection for misleading speech."

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Case at a glance

Do new FDA restrictions on tobacco marketing violate manufacturers' free speech rights?

A federal court upheld most of the prohibitions as constitutional but struck down two of them.

Impact: Public health advocates say upholding all of the restrictions is critical to tobacco-control efforts and the protection of youth. Tobacco companies say the ruling allows them to offer more diverse products to consumers but still limits their ability to market legal products.

Commonwealth Brands Inc. v. U.S., U.S. District Court for the Western District of Kentucky, Bowling Green Division (link)

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