Circuit Split on Graphic Tobacco Warnings

While the U.S. Court of Appeals for the Sixth Circuit upheld the Food and Drug Administration's graphic warnings for cigarette packages in March, the D.C. Circuit last week found them to be an unconstitutional infringement of the first amendment rights of tobacco companies.

The Sixth Circuit applied the Supreme Court's very deferential standard for regulation of commercial speech when the government protects consumers from being misled by companies' promotional activities by requiring the companies to disclose specific information about their products or services. The D.C. Circuit, however, concluded that the deferential standard did not apply to the graphic warnings. According to the D.C. Circuit, the warnings do not compensate for any misleading advertising by tobacco compaines. Hence, the tougher standard for restrictions of commercial speech should apply.

With the circuit split, we can expect the Supreme Court to take up the issue.

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