Tobacco Manufacturers Challenge Constitutionality of Family Smoking Prevention and Tobacco Control Act

September 1, 2009

By David B. Clissold & Ricardo Carvajal

Five tobacco manufacturers including R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Commonwealth Brands, Inc. (the second, third, and fourth  largest tobacco manufacturers in the U.S., respectively), and a retailer of tobacco products have sued FDA in a Kentucky district court, alleging that certain provisions of the Family Smoking Prevention and Tobacco Control Act (Tobacco Act) violate their First Amendment right to engage in commercial speech, among other constitutional violations.  (A copy of the complaint is available here.)  Plaintiffs ask the court to enjoin FDA from enforcing the challenged provisions of the Tobacco Act. 

Plaintiffs allege that the Tobacco Act essentially eliminates the few remaining avenues for communication with their adult customers, thereby hampering plaintiffs’ ability to increase market share by convincing customers to switch from competing brands to plaintiffs’ brands (in the case of manufacturers) and hampering their ability to use tobacco advertising to generate sales of tobacco and other products (in the case of retailers).  The provisions of the Tobacco Act that plaintiffs contend are “most egregious” include:

  • a prohibition on the use of color and images in advertising (via reissuance of FDA’s 1996 final rule restricting advertising for cigarettes and smokeless tobacco);
  • mandated warnings that displace plaintiffs’ communications on packaging;
  • restrictions on truthful communications regarding modified risk tobacco products;
  • restrictions (if not a ban) on outdoor advertising for cigarettes and smokeless tobacco;
  • a prohibition on the sponsorship of certain events in connection with the brand name of any cigarette or smokeless tobacco;
  • a prohibition on the distribution of free samples of cigarettes, and restrictions on the distribution of free samples of smokeless tobacco; and
  • a prohibition on the marketing of tobacco products in combination with other FDA-regulated products.

Plaintiffs contend that these restrictions are not warranted by a compelling governmental interest, that they do not directly advance the government’s interest,  and that they are more extensive than is necessary.  The challenged provisions thus fail to pass constitutional muster under the test for government regulation of commercial speech that was announced by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

The filing of this suit was predicted during Congressional deliberations on H.R. 1256 (which subsequently became the Tobacco Act).  Given the stakes for both sides, the case is almost certain to end up before the Supreme Court.  That will be a familiar arena for Lorillard and R.J. Reynolds.  They were two of the plaintiffs involved in the last Supreme Court case that examined the government regulation of commercial speech regarding tobacco products.  In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the Supreme Court held that advertising restrictions on cigarettes imposed by the state of Massachusetts were unconstitutional.

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