BOWLING GREEN, KY – On Tuesday, a federal district court in Kentucky ruled on the tobacco industry's challenge to the extensive tobacco labeling, advertising and marketing restrictions that were adopted by Congress as part of the Family Smoking Prevention and Tobacco Control Act, the law that also gave the Food and Drug Administration (FDA) authority to regulate tobacco.
The tobacco industry claimed that most of the law's restrictions on tobacco labeling, advertising and marketing were unconstitutional.
The court agreed with some of the industry's arguments, striking down the law's ban on using color and graphics on product labels and ads, as well as a prohibition of labeling, ads and other representations that a product is safer by virtue of being regulated or inspected by the FDA. In each of those cases, the court determined that the statute's restrictions on speech were too broad.
However, the court upheld the law's ban on tobacco companies' brand-name sponsorship of events; the ban on distributing items like caps, t-shirts and sporting goods with brand names and logos; and the prohibitions on offering free samples of tobacco products, gifts with purchase, or co-marketing tobacco products with non-tobacco products that are FDA-regulated (like certain foods, cosmetics, drugs, dietary supplements).
The court also upheld new labeling requirements that will entail using the top 50% of the front and rear panels of cigarette packaging for warnings, among other requirements. A new regime that would prevent marketing products as safer until they receive FDA approval as "modified risk" products was upheld as well. And the court rejected the industry's challenge to a provision that allows federal, state, local and tribal authorities to impose additional restrictions, or even ones more stringent, than those imposed by the new law.
There were two issues left open by the court's ruling. First, the industry's attack on a ban on outdoor advertising within 1000 feet of schools, parks or playgrounds must await the FDA's issuance of actual regulations on such advertising before the court will consider the legality of the ban.
Second, the court left open the possibility that tobacco companies could challenge the inability to use their trademarks and the like on their packaging as a unconstitutional government taking of property, as the court ruled that such claims must be brought before a different court.
The battle may not be over, of course, because each side has the option of appealing the ruling. So stay tuned.
For more on FDA tobacco, check out “Inside Washington” from the September 2009 NACS Magazine.
For additional tobacco resources, visit the FDA’s Web site.