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First Amendment: Tobacco Industry Suit Claims Regulations on Advertising Go Too Far.

Posted By Cliff Tuttle | September 2, 2009

Posted by Cliff Tuttle (c) 2009

A case to watch was just filed in a U.S. District Court in Kentucky. Health and safety versus free speech is a recurring theme in Constitutional Law. However, it is too soon to say whether this challenge to legislative regulation of commercial speech will ultimately be a candidate for the Supreme Court docket. This may depend upon how roughly the District and Circuit treat the government regulations at issue on the way up. However, one would suppose that the industry’s lawyers must have seen something encouraging in the emerging First Amendment case law to encourage them to risk the challenge. See Jurist, September 1, 2009.

The introduction to the complaint in Commonwealth Brands, Inc. et al. v. United States of America, sets forth the industry’s First Amendment argument in concise form in an Introduction:

“[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.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001). On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (the “Act”), which does not outlaw tobacco products, but which imposes unprecedented restrictions on Plaintiffs’ First Amendment rights by limiting their ability to disseminate truthful information about tobacco products to adult consumers. Plaintiffs do not challenge portions of the Act that materially and directly address tobacco sales to minors.[Footnote omitted] However, Plaintiffs do challenge a number of restrictions that circumscribe their rights to communicate truthful information to adult consumers who have an interest in receiving such information. Prior to the passage of the Act, existing federal and state laws already severely restricted Plaintiffs’ ability to speak truthfully and freely to adult tobacco consumers—the Act now adds layer upon layer of additional restrictions, thereby virtually eliminating the remaining few avenues for protected speech.
2. The Supreme Court has explained that limitations on commercial speech, at a minimum, must directly advance an asserted substantial government interest and must not be more extensive than necessary to serve the government’s interest. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980). The Government “bears the burden of showing not merely that its regulation will advance its interest, but also that it will do so ‘to a material degree,'” and “‘speculation or conjecture’ . . . is an unacceptable means of demonstrating that a restriction on commercial speech directly advances the [Government]’s asserted interest.” 44 Liquormart, Inc. v. R.I., 517 U.S. 484, 505, 507 (1996) (plurality op.)(emphasis added) (citations omitted). The Act cannot pass muster under this standard.
3. While the Act is purportedly intended to reduce youth tobacco use, a number of its provisions broadly restrict all speech by Plaintiffs about tobacco products, including truthful speech intended for and received by adults. For example, the Act prohibits Plaintiffs from conveying any speech through the use of color lettering, trademarks, logos, or any other imagery in most advertisements, including virtually all point-of-sale and direct-mail advertisements. Another restriction renders completely ineffective the one place where such color imagery can be used: Plaintiffs’ packaging. The top half of the front and back of all cigarette packaging is appropriated by a Government-drafted anti-tobacco message, including shocking, color graphic images and other mandated information, leaving Plaintiffs with just a small portion of the bottom half of their cigarette packages to communicate with adult consumers. The obvious purpose of this is to force Plaintiffs to stigmatize their own products through their own packaging. Given that consumers in many retail establishments generally must view tobacco products from across a counter-top, the only thing adult consumers are likely to see is the Government-drafted message; the bottom half of the cigarette packaging, to which Plaintiffs’ branding is relegated, will be difficult, if not impossible, to see. Together, these restrictions leave Plaintiffs with virtually no means of effectively communicating with many adult tobacco consumers through advertisements, and the Act substantially impairs the value of their trademarked logos on packaging. These speech restrictions are particularly egregious as the population has, for decades, been well informed of the harms of tobacco use and the Government cannot demonstrate that the restrictions will further increase consumer awareness or reduce youth tobacco use.
4. The Act goes so far as to prohibit Plaintiffs from making truthful statements about their products in scientific, public policy, and political debates—speech that receives the highest level of protection and is subject to strict scrutiny review. For example, one key provision of the Act prohibits Plaintiffs from making truthful statements about the relative health risks of tobacco products to “individual tobacco users,” if the FDA determines that such truthful statements would not “benefit the health of the population as a whole.” Pub. L. No. 111-31, sec. 101(b), §911(g)(1), 123 Stat. at 1784, 1814 (amending the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., to insert 21 U.S.C. § 387k(g)(1)). This restriction, moreover,is not limited to advertising, promotion, and other traditional forms of commercial speech, but rather, applies to “any action directed to consumers through the media or otherwise.” Id., sec.101(b), § 911(b)(2)(A)(iii), 123 Stat. at 1812-13 (amending the FDCA to insert §387k(b)(2)(A)(iii)) (emphases added). Plaintiffs would be barred from disseminating this truthful information if, in the FDA’s view, it would not “benefit the health of the population as a whole” because it may offer current tobacco users a level of reassurance that might encourage them to consume less harmful tobacco products rather than to quit altogether. Pub. L. No. 111-31, sec. 101(b), § 911(g)(1), 123 Stat. at 1784, 1814 (amending the FDCA to insert 21 U.S.C. §387k(g)(1)). Yet the law provides absolutely no criteria by which such judgments shall be made, and thus relegates Plaintiffs’ truthful, non-misleading speech to vagaries of subjective, standardless assessments by Government officials.
5. These are but a few of the Act’s many flaws and they do not pass muster under either intermediate or strict scrutiny review. Congress, having repeatedly chosen not to ban tobacco products altogether, cannot now prohibit Plaintiffs from truthfully speaking about their lawful products to adult consumers. See, e.g., Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 192-93 (1999). As the Supreme Court has emphasized, “regardless of the strength of the Government’s interest in protecting children, [t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Reno v. ACLU, 521 U.S. 844, 875 (1997) (internal quotation marks and citation omitted).
6. In short, while each of these provisions individually violates the Constitution, collectively, the Act’s provisions cut off nearly every currently-available avenue of tobacco advertising and marketing. In so doing, they run afoul of Plaintiffs’ rights to free speech and due process, and effectuate an unconstitutional taking of private property, in violation of the First and Fifth Amendments by, among other things, chilling Plaintiffs’ right to participate in scientific and political debates surrounding their products, unduly restricting Plaintiffs’ right to engage in commercial speech, and confiscating Plaintiffs’ packaging, advertising, and intellectual property for an anti-tobacco message drafted by the Government. Plaintiffs therefore respectfully request that this Court declare the challenged provisions of the Act in violation of the First and/or Fifth Amendments to the United States Constitution and enjoin the Government from enforcing these unconstitutional provisions.

Here is the entire Complaint.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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