Last week, the Sixth Circuit heard oral arguments in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing.  See Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235).   The panel included Sixth Circuit Judges Eric L. Clay and Jane B. Stranch, and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation.  The Sixth Circuit case is the first major challenge to the Tobacco Control Act brought by tobacco companies, and it attracted a number of amicus briefs.

The plaintiffs argued to the panel that several provisions of the Tobacco Control Act violate their First Amendment rights to free speech.  One key element of the Act is the requirement of new color warnings which graphically depict the negative health consequences of smoking.  Beginning in Fall 2012, these new warnings must occupy the top half of the front and back of all cigarette packages, and must occupy 20% of all cigarette and smokeless tobacco advertising.  The warnings, which were formally unveiled by the FDA on June 21, 2011, include graphic images of, among other things, a dead man’s body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.


The plaintiffs’ position is that these warnings are a “shocking” and “gratuitous” defacement of tobacco companies’ cigarette packaging and serve no other purpose than to deliver “a visually striking, attention-grabbing anti-smoking message.”  Indeed, Judge Clay asked U.S. Department of Justice attorney Mark Stern during oral argument why the government did not develop a more narrowly tailored warning, “instead of those disgusting pictures.”  Stern responded that the warnings are reasonable and constitutional. He argued that the government has a right to regulate how tobacco is marketed.

The Tobacco Control Act also imposes a number of other new marketing restrictions on tobacco companies, including a ban on brand-name sponsoring of athletic, musical, artistic, and social and cultural events, and a ban on name-brand merchandise and free samples.  All of these marketing techniques, the government contends, attract young persons to use tobacco products, which Stern noted to the panel are “lethal and addictive.” Indeed, Stern stated that tobacco “would be banned if it came out now.”

We are following this case closely, and will update you when the Sixth Circuit issues its opinion, which could be in the next two to three months.