What is the latest on the federal lawsuit filed by the major tobacco companies challenging the new Tobacco Control Act?

On March 19, 2012, an appeals court issued a decision upholding many parts of the federal Family Smoking Prevention and Tobacco Control Act (the Tobacco Control Act).

The Court of Appeal for the Sixth Circuit found many parts of the Tobacco Control Act legally valid, including:

  • large graphic warning labels required on tobacco packages,
  • a ban on brand-name event sponsorships,
  • a ban on the distribution of branded non-tobacco merchandise (e.g., Camel shirts or hats),
  • a ban on claims implying that a tobacco product is safer because of FDA regulation and approval,
  • a ban on tobacco companies making health claims about tobacco products without FDA review, and
  • a ban on the distribution of free samples.

The court ruled that two provisions of the law violated the First Amendment of the U.S. Constitution because they restricted too much of the tobacco companies’ speech:

  • a ban on brand loyalty programs (e.g., Marlboro Miles), and
  • a ban on color and graphics in tobacco labels and advertising.

A copy of the decision is available at http://www.ca6.uscourts.gov/opinions.pdf/12a0076p-06.pdf.

History of this case
In August 2009, major tobacco companies filed a lawsuit in federal court in Western Kentucky challenging several provisions of the Tobacco Control Act. For more information on the specific claims made in the lawsuit, see our FAQ, “I heard that tobacco companies have challenged the new Tobacco Control Act. What is the lawsuit about and how will it affect the law’s implementation?

In 2010, the District Court upheld most of the law, striking down two provisions and upholding eight others. The Sixth Circuit’s decision is largely similar to the earlier decision in this case made by the District Court. A copy of the earlier decision is available at http://howappealing.law.com/Commonwealth-USA-Decision.pdf.

The latest ruling means that two separate courts have now upheld the majority of the provisions in the Tobacco Control Act, rejecting many of the tobacco industry’s arguments against it. Furthermore, it is significant that this court upheld the graphic warning label requirement. Another court—the Washington D.C. Court of Appeal—ruled differently on August 24, 2012, holding that the required graphic warning labels violate the tobacco companies’ First Amendment rights. For additional information on that case see our FAQ, “What’s the status of the court challenges against the new graphic warning labels for cigarette packages?

Next steps
The U.S. Supreme declined to review the court’s decision. Because of a separate appellate court decision that struck down the agency’s first set of proposed labels, the FDA now must develop a second set of labels and make them available for public comment. As a result, the FDA has indefinitely proposed implementation of the graphic warning label requirements.