During the first week of September, a lawsuit was filed in the federal district court in Bowling Green, Kentucky by R.J. Reynolds Tobacco Company, Conwood Company, LLC, Commonwealth Brands, Inc., Lorillard, Inc., National Tobacco Company, and a NATO retailer, Discount Tobacco City & Lottery, Inc., against the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration seeking to protect the constitutional right of tobacco manufacturers and retailers to advertise legal tobacco products.
Earlier this year, Congress passed and the president signed into law new regulations granting the Food and Drug Administration sweeping powers to regulate the tobacco industry. The powers include restrictions on cigarette and smokeless tobacco product advertising and new cigarette package warning label requirements. Specifically, the lawsuit seeks to have declared as unconstitutional the new FDA regulations that would:
Ø Prohibit color lettering, trademarks, brand logos and images on all retail point-of-sale advertising and direct mail advertising.
Ø Restrict tobacco product advertising in retail stores to the use of black letters on a white background to list the brand name, product size, price, etc. (also known as “tombstone” advertising).
Ø Prohibit any color imagery on the packaging of cigarettes and smokeless tobacco products while also requiring that the top 50 percent of the front and back of cigarette packages contain shocking graphic images and government mandated warning information.
Ø Prohibit tobacco manufacturers from making any statements about tobacco products in scientific, public policy or political debates.
While the lawsuit does not challenge the authority that Congress granted to the FDA to regulate tobacco products, the complaint focuses on declaring as unconstitutional those regulations that prohibit or restrict the advertising of tobacco products and that require major portions of cigarette packaging to contain warning labels.
Under the First Amendment of the U.S. Constitution, free speech is protected and the U.S. Supreme Court has defined “speech” to include “commercial speech,” which is better known as advertising. In fact, the very first sentence in the complaint quotes the U.S. Supreme Court’s 2001 decision in the case of Lorillard Tobacco Co. v Reilly, which states: “[S]o long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.”
During the past two years, NATO communicated its opposition to FDA regulation to members of Congress. As a part of NATO’s letters and other lobbying efforts, we specifically informed congressional members that a ban on tobacco product advertising was unconstitutional. While Congress simply chose to ignore these concerns, U.S. Supreme Court decisions regarding the right to advertise legal tobacco products are on the industry’s side. In the 2001 Lorillard case, the U.S. Supreme Court ruled that a Massachusetts law that not only banned outdoor tobacco advertising, including advertisements in retail stores facing outward, but which also restricted point-of-sale advertising, was unconstitutional.
In responding to the lawsuit, the FDA may claim that these advertising and packaging restrictions are needed to reduce youth tobacco use. However, more than a decade ago in the U.S. Supreme Court case of Reno v. ACLU, the court majority held that “regardless of the strength of the government’s interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” In other words, the Supreme Court held that advertising meant for adults and which adults have a right to see cannot be restricted simply because children might also see the advertising. This same ruling was made by the U.S. Supreme Court in the Lorillard case in 2001 when the court struck down the Massachusetts point-of-sale advertising restrictions.
Another significant claim made in the lawsuit involves the FDA requiring that the top 50 percent of the front and rear panels of a cigarette package contain graphic color pictures and other required warning statements. The lawsuit includes a claim that these package requirements constituent an unconstitutional taking of the property rights of the manufacturers since the government would essentially be confiscating packaging space for a government dictated anti-tobacco message.
NATO retail member Frank Hinton of Discount Tobacco City and Lottery joined the lawsuit as a plaintiff because, in his words, “we only sell tobacco products to people over the age of 18 and it is not right for the federal government to dictate to me how I advertise legal tobacco products in my stores to adult customers.”
Besides asking the court for a determination that the advertising ban and packaging requirements are unconstitutional, the plaintiffs in the lawsuit are asking the U.S. Federal District Court in Kentucky for a preliminary and permanent injunction prohibiting the FDA from enforcing the provisions of the law that relate to tobacco advertising, tobacco packaging and graphic labeling requirements.