The Sixth Circuit today issued its long-awaited opinion 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 Opinion, Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235) (PDF).  The Sixth Circuit case was the first major challenge to the Tobacco Control Act brought by tobacco companies, and it attracted a number of amicus briefs.

Sixth Circuit Judge Jane B. Stranch and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation, voted to uphold a key element of the new tobacco law which requires new color warnings graphically depicting 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 panel majority determined that the color graphics requirement is constitutional because it materially advances the government’s interest in curing an information deficit in consumers regarding health hazards.  Judge Eric L. Clay dissented.  Even though he agreed that the government had demonstrated that an “information deficit” still exists among consumers, Judge Clay concluded that the government had “not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm.”  Judge Clay wrote that “[i]t appears, from the government’s own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make the consumer less emotionally likely to use or purchase a tobacco product.”  Judge Clay’s dissent is not surprising and, indeed, was foreshadowed during oral argument back in July when he 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.”

In addition to upholding the constitutionality of the new color warnings, the Sixth Circuit affirmed the district court’s decision upholding several other provisions of the new tobacco law, including the restrictions on speech concerning modified risk tobacco products, the marketing bans on brand-name sponsorships and merchandise and sample tobacco products, and the new requirements for textual health warnings.  The Sixth Circuit also affirmed the district court’s decision invalidating the Act’s restriction on the use of color and imagery in tobacco product advertising because the ban was “vastly overbroad.”  Finally, the Sixth Circuit reversed the district court’s holding invalidating the Act’s restrictions on representations that tobacco products are safer or less harmful due to FDA regulation, as well as the district court’s decision upholding the constitutionality of so-called continuity programs, pursuant to which existing age-verified adult customers are rewarded for their purchases with non-branded, non-tobacco merchandise.

The Sixth Circuit’s 2-1 ruling today comes on the heels of a decision by Judge Richard Leon of the U.S. District Court for the District of Columbia, who ruled on February 29 that “these mandatory graphic images violate the First Amendment by unconstitutionally compelling speech.”  See Memorandum Opinion, R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., Case No. 11-1482 (D.D.C.) (PDF).  The United States is appealing that decision.  Judge Clay cited Judge Leon’s decision in dissent as support for his conclusion that the color graphic warning requirement violates the First Amendment.

This is a case that could end up at the U.S. Supreme Court, and we will continue to follow it closely.