Thursday, November 11, 2010
The FDA this week unveiled its new proposed cigarette warning labels under the Family Smoking Prevention and Tobacco Control Act, signed on June 22, 2009. Here are a some sample approved warning labels, from the FDA web-site:
As you might imagine, manufacturers aren't happy. They vow to sue--again, as it turns out. Commonwealth Brands, Conwood, Discount Tobacco City, Lorillard, National Tobacco, and R.J. Reynolds sued last year challenging the Act's labeling requirements under the First Amendment, the Takings Clause, and the Due Process Clause. The District Court for the Western District of Kentucky issued a split decision; here are the highlights:
Ban on Color and Graphics Violates First Amendment. The Act requires tobacco labels and advertisements to be in black text on white background, with no graphics. (The idea is to deter children, who are more attracted to colorful labels with things like cartoon camels.) The court ruled that the ban swept too broadly: "Congress could have exempted large categories of innocuous images and color--e.g., images that teach adult consumers how to use novel tobacco products, images that merely identify products and producers, and colors that communicate information about the nature of a product . . . ." It thus violated the Central Hudson commercial speech test.
Ban on Event Sponsorship and Merchandise Do Not Violate First Amendment. The Act bans tobacco companies from sponsoring sporting, social, and cultural events in the name of a tobacco product in order to prevent positive association between these events and tobacco and marketing to youth. It also bans the use of tobacco product names on merchandise give-aways. The court defered to Congress in finding that sponsorship and merchandise advertisements can reach children, and therefore the bans were sufficiently tailored to withstand First Amendment scrutiny.
Authorization of Regulatory Power Not Unconstitutional Delegation. The Act permits state and local governments to enact more stringent standards. The court ruled that this was not an unconstitutional delegation of authority, because it wasn't a "delegation" or "authorization"; it simply did not preempt state efforts to regulate in this area.
Warning Labels Not Unconstitutional. The Act requires warning labels on the top 50% of the front and rear panels of packages with color graphics that depict the negative health consequences of smoking. (Examples above.) The court ruled that this requirement meets the Central Hudson standard--sufficiently tailored to advance the government's substantial interest.
Modified Risk Tobacco Products Labelling Not Unconstitutional. The Act prohibits labelling that suggests that a tobacco product is less harmful than other tobacco products. The court ruled that the requirement was not a viewpoint-based restriction on speech and was not unconstitutionally vague.
Ban on FDA Approval Claims Unconstitutional. The Act prohibits a statement that implies that the tobacco products are safer because they comply with FDA standards. The court ruled that this ban applies to more than mere commercial speech and that it failed strict scrutiny.
Ban on Outdoor Advertising Not Ripe. The Act bans outdoor advertising within 1,000 feet of a school or playground. The court ruled that this was not ripe, because the FDA hadn't yet issued its final regulations (which allowed the Secretary to modify the ban in light of "governing First Amendment case law").
Ban on Gifts Not Unconstitutional. The Act bans gifts that manufacturers sometimes give away with a purchase of their products. The court ruled that any impact on free speech was incidental and outside the scope of the First Amendment.
Takings: No Jurisdiction. The court ruled that it had no jurisdiction over the plaintiffs' claims that the Act violated the Takings Clause by depriving them of their "trademarks, trade dress, packaging, and advertising without just compensation." The court ruled that the plaintiffs must bring this claim under the Tucker Act in the Court of Federal Claims.