Graphic Tobacco Ads Declared Constitutional
March 20, 2012

Graphic Tobacco Ads Declared Constitutional

An appeals court voted 2-1 Monday that a federal mandate requiring cigarettes and similar products to carry graphic warning images does not violate the free speech rights of tobacco manufacturers.

According to Jennifer Corbett Dooren of the Wall Street Journal, the decision handed down by the U.S. Court of Appeals for the Sixth Circuit deemed that the Family Smoking Prevention and Tobacco Control Act, which gives the US Food and Drug Administration (FDA) the right to regulate tobacco-based products, did not violate the First Amendment rights of the companies that make and market such goods.

The Louisville, Kentucky-based three-judge panel's ruling reinforced a previous verdict that the act could place "restrictions on the marketing of modified-risk tobacco products" while also prohibiting "on event sponsorship, branding non-tobacco merchandise and free sampling" and ruling that a UPI report added.

"It also affirmed the judge's ruling 'upholding the constitutionality of the color graphic and non-graphic warning label requirement,'" the news agency reported, adding that the appeals court also "reversed the judge's 'determination that the act's restriction on statements [on] the relative safety of tobacco products based' on Food and Drug Administration regulation is unconstitutional."

In their ruling, the panel's decision establishes that the federal government "has an interest in preventing consumers from being deceived by the marketing practices of tobacco companies," according to the Associated Press (AP), and that the regulations laid out by the 2009 law are intended to accomplish that goal.

Earlier this month, as was previously reported on RedOrbit, US District Judge Richard Leon ruled  that the large, graphic health warnings set to be placed on cigarette packages and other tobacco products did, in fact, violate the Constitutional rights of their manufacturers "by unconstitutionally compelling speech."

The Family Smoking Prevention and Tobacco Control Act provisions requiring the graphic warnings go into effect in September. Nine images have been approved by the FDA, including ones featuring pictures of rotting teeth, diseased lungs and a corpse with chest staples on an autopsy table. Each image would cover the top half of both the front and the back of each pack.

In his earlier ruling, Judge Leon declared that while the use of the warnings regarding the dangers of tobacco use “might be compelling, an interest in simply advocating that the public not purchase a legal product is not.” Leon's decision conflicted with a January 2010 ruling by US District Court Judge Joseph McKinley upholding the labels´ legality, while Monday's verdict reinforces that previous ruling.

Representatives of the five tobacco companies challenging the FDA regulations told the AP that the ruling only covers the issue of whether or not the agency has the right to place advertising regulations on the industry. R.J. Reynolds Tobacco spokesman Bryan Hatchell said that Monday's ruling determined only that warnings could be requires, while Lorillard Tobacco attorney Floyd Abrams added that the court did not discuss the specific content of those warnings.

Regardless, in a statement issued Monday, Susan M. Liss, Executive Director of The Campaign for Tobacco-Free Kids, called the decision "a clear victory for public health."

"It recognizes that Congress acted appropriately, based on the science and in accordance with First Amendment principles when it passed the law granting the FDA authority over tobacco products. This ruling is a critical step toward allowing the FDA to move forward in reducing the death and disease caused by tobacco use, which is the nation's number one cause of preventable death," she added.

The case is expected to ultimately wind up before the US Supreme Court.