July 28th, 2011
Federal appeals court weighs free speech challenge to restrictions on tobacco advertising
The Washington Post
The free-speech rights of tobacco companies are improperly restricted by a federal law giving the Food and Drug Administration the power to impose graphic warnings about the dangers of smoking and regulate how tobacco companies market and advertise their products, an attorney for the tobacco companies argued Wednesday.
Noel Francisco, a lawyer for R.J. Reynolds Co., told a three-judge panel from the 6th U.S. Circuit Court of Appeals that the Family Smoking Prevention and Tobacco Control Act is so sweeping, it stops companies from making statements that are true and not misleading.
“It draws no distinction between the good and the bad,” Francisco said. “It impermissibly restricts the adult population to what is fit for children,” said Francisco, who argued the case on behalf of multiple tobacco companies.
U.S. Department of Justice attorney Mark Stern told the panel that tobacco is “lethal and addictive” and the government has a right and duty to regulate how it is sold.
“This product would be banned if it came out now,” Stern said.
The appeals panels is weighing whether to overturn a January 2010 ruling by U.S. District Judge Joseph H. McKinley Jr. in Bowling Green, Ky. McKinley rejected much of the first major challenge to the law brought by tobacco companies. McKinley upheld most of the marketing restrictions in the law, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product. The judge threw out a ban on color and graphics on most tobacco advertising.
A ruling from the appeals court is not expected for several months.
The law, which took effect in June 2009, lets the FDA limit, but not ban, nicotine. It also lets the agency ban candy flavorings and marketing claims such “low tar” and “light,” require warnings be emblazoned over carton images, regulate what goes into tobacco products and publicize those ingredients.
The most recent part of the law to be finalized authorized the FDA to place graphic warning labels about the health impact of smoking. The labels include up-close photos of a smoker’s rotting teeth, a man exhaling smoke from a tracheotomy hole in his neck and the damaged heart muscle of a smoker. The labels cover the top half of every cigarette package.
Judge Eric Clay questioned the use of the graphic photos instead of a simpler warning label.
“Instead of those disgusting pictures ... why wouldn’t the government come up with a more narrowly tailored solution?” Clay asked Stern.
Stern answered that past required warnings have been simple, but other countries have had success with images similar to the ones being put into place.
“So long as the warning is reasonable, that’s all it takes,” Stern said.
Francisco said the law gives the FDA the right to reject marketing and advertising schemes from the tobacco companies before they are seen by the public. Not only is that law illegally restrictive, Francisco said, but people already know the danger of smoking, making the warnings of little use.
“When you simply tell consumers what they already know, you don’t change behavior,” Francisco said.
Francisco said the government can go after tobacco companies that make false or misleading statements after a statement has been made publicly.
“Does it put the burden on you to show the speech is permissible or to show that it is true?” Judge Jane Branstetter Stranch asked.
“Both,” Francisco replied. “What you don’t do is throttle permissible speech in the cradle.”
Joining R.J. Reynolds Tobacco Co., maker of Camel cigarettes, and Lorillard Inc., which sells Newport menthols, were National Tobacco Co., Discount Tobacco City & Lottery Inc., and Kentucky-based Commonwealth Brands, which is owned by Britain’s Imperial Tobacco Group PLC.
The case drew briefs from a variety of interested parties, including the National Association of Attorneys General, National Association of Convenience Stores and American Advertising Federation.
Richmond, Va.-based Altria Group Inc., parent company of the nation’s largest tobacco maker, Philip Morris USA, supported the law, saying the company backs tough but fair regulation.
No. 2 Reynolds American, owner of R.J. Reynolds Tobacco Co., and No. 3 Lorillard, both based in North Carolina, said the law would lock in Altria’s share market leadership by limiting future marketing.