Kentucky federal judge rules for and against tobacco companies

U.S. District Judge Joseph McKinley, Jr. ruled that the government could not ban tobacco companies’  use of color in text and illustration on labels and in advertising. The judge also found unconstitutional restrictions on statements about the safety of tobacco products but upheld the ban on certain marketing tactics aimed at youth. -DB

First Amendment Law Prof Blog
January 6, 2010
By Josie F. Brown

Yesterday in Kentucky U.S. District Judge Joseph McKinley, Jr. ruled that restricting manufacturers’ use of color in the text and graphics of their labels and advertising exceeded the government’s authority to regulate commercial speech.

In addition, the court found facially unconstitutional the statute’s ban on statements related to FDA regulation of tobacco. 21 U.S.C. § 331(tt)(4) prohibited “any express or implied statement or representation directed to consumers with respect to a tobacco product, in a label or labeling or through the media or advertising, that either conveys, or misleads or would mislead consumers into believing, that … the product is safe or less harmful by virtue of – (A) its regulation or inspection by the [FDA]; or (B) its compliance with regulatory requirements set by” the FDA. Defending this provision the government has asserted it would not apply to “news organizations” and “politicians.”

The court saw this distinction among categories of speakers unsupported by the statute‘s terms and instead based on an unsupportable “assumption that the media those categories of speakers would have no need to make statements through the media “directed to consumers with respect to a tobacco product.” The court wrote:

Surely journalists, doctors, scientists, politicians, and numerous other groups and individuals with access to media have an interest in and are capable of making statements about the effect of the FDA regulation that are “directed to consumers with respect to a tobacco product.” It is therefore without question that the ban applies to more than just commercial speech and must satisfy strict scrutiny.

The court found the government could not satisfy that standard.

However, Judge McKinley found that the FDA could require cigarette makers to place graphic images on the top half of cigarette packages to emphasize the dangers of smoking and rejected a challenge to a ban on tobacco marketing techniques likely to attract youth. Such tactics include sponsoring auto racing or rodeo events and distributing brand-identified items such as caps and T-shirts.

The court also held that no First Amendment interests were implicated by bans on cigarette manufacturers’ offering of free samples of tobacco products, providing gifts with the purchase of tobacco products, and market their products with non-tobacco items.

An appeal to the Sixth Circuit is expected.

Copyright 2010 First Amendment Law Prof Blog