When the right to advertise and sell legal tobacco products without undue regulations or unconstitutional restrictions is threatened, the final recourse is usually litigation. Currently, there are four lawsuits pending on tobacco issues.
Color Ad Ban/Graphic Warnings
Two of the most visible FDA tobacco regulations are the ban on color cigarette advertising and the implementation of graphic picture health warnings. In August of 2009, a lawsuit was filed by a NATO retailer and five tobacco manufacturers to declare that the FDA ban on color cigarette advertising and the graphic warning label requirement were unconstitutional. On January 5, 2010, a Kentucky federal district court judge struck down the ban on color tobacco advertising because advertising is a form of protected free speech under the First Amendment to the U.S. Constitution. However, the court upheld the graphic warning label requirement. The FDA appealed the overturning of the color ad ban while the NATO retailer and manufacturers appealed the upholding of the graphic warning labels.
On July 27th, the U.S. Circuit Court of Appeals held an oral argument hearing on these appealed issues. A decision from the U.S. Circuit Court of appeals should be issued in several months.
In 1999, the U.S. Department of Justice sued the major cigarette manufacturers claiming that they used misleading statements about the health effects of smoking. Then, in 2006, a federal judge issued a “remedial order” requiring the manufacturers to place newspaper advertisements and television ads with statements “correcting” these claims.
The remedial order also required each manufacturer to place an 18” wide by 30” high sign listing these corrective statements on the front counter of every retail store under a promotional payment contract. This means that a retailer would need to place up to three signs on the front checkout counter depending on how many contracts the retail had in place.
This remedial order was appealed and the U.S. Circuit Court of Appeals ruled, in part, that the federal district court judge had not adequately supported this retail signage requirement. In response to the Circuit Court of Appeals order, NATO was one of the retail trade associations that submitted a brief supporting the abandonment of the corrective sign requirement.
In its brief, NATO argued that (1) the remedial order violates retailers’ free speech rights because the order is forcing retailers to deliver anti-cigarette messages to their customers, (2) retailer due process rights were infringed because not a single retailer was a party to the lawsuit, (3) retailer property rights were taken because valuable counter space would be required to display the signs, and (4) displaying the signs creates a security risk because the line of sight for store clerks would be blocked. The federal judge has not yet issued a follow up order on the corrective signs at retail.
Menthol and Bias
The FDA law established the Tobacco Product Scientific Advisory Committee (TPSAC) which is a group of 12 individuals including scientists, public health advocates, a member of the public and three non-voting tobacco industry members. The FDA law required this committee to conduct a yearlong study of the impact of menthol in cigarettes, especially on youth, and submit a report to the FDA.
Several manufacturers have sued the FDA to prevent the TPSAC report from being relied on by the FDA because three of the TPSAC members may have conflicts of interest (these individuals have testified as paid expert witnesses against the industry in other lawsuits and, as a result, may be biased against the industry).
Worcester, MA Ad Ban
On Friday, June 17th, a lawsuit was filed by NATO and three tobacco manufacturers in federal district court seeking a preliminary and permanent injunction against an ordinance adopted on May 10, 2011 by the Worcester, Massachusetts city council which prohibits (1) all outdoor tobacco advertising, and (2) all indoor tobacco advertisements displayed in a retail store that can be viewed from the street or a park (e.g., through a window). It is important to note that this ordinance bans advertisements for all tobacco products, not just cigarettes.
The lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution that protects free speech, including commercial speech in the form of product advertising. In 2001, a U.S. Supreme Court decision struck down a Massachusetts state law that prohibited advertising of tobacco products visible from any area within 1,000 feet of a school or playground and held that the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.
The Worcester city ordinance is even more restrictive than the Massachusetts statewide law overturned by the U.S. Supreme Court in the Lorillard case. NATO and the three tobacco manufacturers filed this lawsuit to protect the right to continue to advertise legal tobacco products at retail stores.