Numerous Tobacco Manufacturers and Retailer File Lawsuit on FDA Provisions
A lawsuit was filed this week in federal district court in Bowling Green, Kentucky by R.J. Reynolds Tobacco Company, Conwood Company, LLC, Commonwealth Brands, Inc., Lorillard, Inc., National Tobacco Company, and Discount Tobacco City & Lottery, Inc. against the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration seeking to protect the constitutional right of tobacco manufacturers and retailers to communicate to adults about tobacco products.
Lawsuit Focus: Constitutional Protection of Speech
While the lawsuit does not challenge the authority that Congress granted to the FDA to regulate tobacco products, the forty-six page complaint focuses on declaring as unconstitutional those regulations that prohibit or restrict the advertising of tobacco products and the providing of information about tobacco products to adults. Under the First Amendment of the U.S. Constitution, free speech is protected and the U.S. Supreme Court has defined “speech” to include “commercial speech” which is better known as advertising. In fact, the very first sentence in the complaint quotes the U.S. Supreme Court’s 2001 decision in the case of Lorillard Tobacco Co. v Reilly which states: “[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.” Specifically, the lawsuit seeks to have declared as unconstitutional the new FDA regulations that would:
- Prohibit color lettering, trademarks, brand logos and images on all retail point-of-sale advertising and direct mail advertising.
- Restrict tobacco product advertising in retail stores to the use of black letters on a white background to list the brand name, product size, price, etc. (also known as “tombstone” advertising).
- Prohibit any color imagery on the packaging of cigarettes and smokeless tobacco products.
- Prohibit tobacco manufacturers from making any statements about tobacco products in scientific, public policy or political debates.
Besides seeking the declaration of unconstitutionality, the plaintiffs in the lawsuit are asking the U.S. Federal District Court in Kentucky for a preliminary and permanent injunction prohibiting the FDA from enforcing the provisions of the law that relate to tobacco advertising, tobacco packaging and graphic labeling requirements.
In response, the FDA may claim that these advertising and packaging restrictions are needed to reduce youth tobacco use. However, more than a decade ago in the U.S. Supreme Court case of Reno v. ACLU, the court majority held that “regardless of the strength of the government’s interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” In other words, the Supreme Court held that advertising meant for adults and which adults have a right to see cannot be restricted simply because children might also see the advertising.
NATO Retailer Comment
NATO retail member Frank Hinton of Discount Tobacco City and Lottery joined the lawsuit as a plaintiff because, in his words, “we only sell tobacco products to people over the age of 18 and it is not right for the federal government to dictate to me how I advertise legal tobacco products in my stores to adult customers.”
From a NATO press release, 9/2/2009