U.S. Supreme Court Asked to Review Sixth Circuit Ruling on Graphic Labels

Published in Tobacco E-News

By
Thomas A. Briant, Executive Director

Five major tobacco manufacturers and a NATO retail member have filed a Petition for a Writ of Certiorari with the U.S. Supreme Court asking the court to review the decision issued in March of 2012 by the U.S. Circuit Court of Appeals for the Sixth Circuit which upheld the constitutionality of the U.S. Food & Drug Administration's graphic cigarette health warnings and the FDA's ban on the marketing of cigarette and smokeless tobacco products through brand-name sponsorships, brand-name merchandise, free samples of these products and free gifts with the purchase of these tobacco products.

The parties filing the petition with the U.S. Supreme Court are American Snuff Co., Commonwealth Brands Inc. (now Commonwealth-Altadis Inc.), Discount Tobacco City & Lottery Inc., Lorillard Tobacco Co., National Tobacco Co. and R.J. Reynolds Tobacco Co.

The Supreme Court has the discretion to either agree to hear an appeal of a court decision or deny the petition to hear the case. While thousands of Petitions for a Writ of Certiorari are filed with Supreme Court each year, only about 100 petitions are granted.

The petition filed by the manufacturers and the NATO retailer raises three questions for the U.S. Supreme Court. First, whether the FDA's Family Smoking Prevention and Tobacco Control Act violates the First Amendment of the U.S. Constitution by mandating new health warnings on cigarette and smokeless tobacco packaging and advertisements, including the graphic picture health warnings for cigarettes. Second, whether the act violates the First Amendment by imposing restraints on manufacturers' speech regarding modified-risk tobacco products. Third, does the act violate the First Amendment by banning the marketing of cigarettes and smokeless tobacco products through sponsorships, free samples and free gifts.

In the petition, the manufacturers and the NATO retailer argue that the U.S. Supreme Court should accept the petition for review because important First Amendment issues are presented. The First Amendment protects free speech, including commercial speech in the form of advertising, and the new FDA warning labels only repeat "well-known information about the product, and, at worst, convey the unmistakable message not to buy the product." That is, the graphic warnings go beyond communicating factual information and advocate that consumers should not purchase cigarettes.

Also, the First Amendment does not allow a blanket ban on commercial marketing to adults, but the FDA rule prohibits the use of brand names, sampling and giving free gifts in a "simplistic effort to shield youth from speech about age-restricted products."

In addition, another reason advanced for the Supreme Court to accept the case for review is the decision reached by the U.S. Circuit Court for the District of Columbia that struck down the FDA graphic cigarette warning labels as unconstitutional. This decision issued by the District of Columbia Circuit creates what is known as a "conflict between the circuits" which the Supreme Court could resolve by accepting the case for review.

The FDA has until November 26 to file a response to this Petition for a Writ of Certiorari. The U.S. Supreme Court will then consider the petition and decide whether to grant or deny the request to review the case.