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LOUISVILLE, Ky. - (Mealey's) Given that tobacco companies have learned to circumvent bans on marketing to minors, a divided Sixth Circuit U.S. Court of Appeals said March 19, the U.S. Food and Drug Administration's proposal for large, graphic warnings on packs pursuant to the 2009 Family Smoking Prevention and Tobacco Control Act (Pub. L. No. 111-31, 123 Stat. 1776 ) does not violate the companies' First Amendment right against compelled speech (Discount Tobacco City & Lottery Inc., et al. v. United States of America, et al., No. 10-5234 and 10-5235, 6th Cir.).
(Opinion. Document #04-120321-018Z.)
"We return to where we began - the lack of consumer awareness of tobacco's serious health risks resulting from the decades-long deception by Tobacco Companies," Circuit Judge Jane B. Stranch wrote in the second part of a two-part opinion. "Ample evidence establishes that current warnings do not effectively inform consumers of the health risks of tobacco use and that consumers do not understand these risks. It is beyond cavil that adolescents are a target of the marketing expertise of Tobacco Companies, a targeting that exists precisely because of intertwined advantages - or for the young, disadvantages - the coupling of immaturity of risk perception with the evidence that the vast majority of regular smokers made the decision to begin smoking as an adolescent.
"It bears emphasizing that the risks here include the undisputed fact that Plaintiffs' products literally kill users and, often, members of the families of users: Tobacco products kill up to one-half of the people who use them as they are intended to be used. Against this backdrop, the Act requires graphic and textual warnings that convey the factual health risks of smoking to provide consumers with truthful information as they make decisions about purchasing and using tobacco products."
U.S. Judge Michael R. Barrett of the Southern District of Ohio, sitting by designation, concurred in the opinion. Circuit Judge Eric L. Clay, who wrote for the unanimous court in the first part of the opinion, dissented from Judge Stranch's analysis on the issue of compelled speech.
"Although the government has demonstrated that an information deficit still exists among potential tobacco consumers, which may render warning-less tobacco products inherently deceptive, it has not adequately shown that the inclusion of color graphic warning labels is a properly or reasonably tailored response to address that harm," Judge Clay said.
He cited the recent decision from the U.S. District Court for the District of Columbia "that the color graphic warning requirement constitutes compelled speech which violates the First Amendment (R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., 2012 LEXIS 26257, [D.D.C. Feb. 29, 2012])."
Judge Clay otherwise affirmed the Western District of Kentucky's holding that a ban on any use of color graphics on cigarette packs was unconstitutional and reversed the District Court's determination that the act's restriction on statements regarding the relative safety of tobacco products based on FDA regulations is unconstitutional and its determination that the act's ban on tobacco continuity programs is permissible under the First Amendment.
The government had argued that color and graphics in tobacco product packaging and advertising are important tools in tobacco companies' appeal to the youth market and not subject to constitutional free speech protection. In a ruling both sides appealed, the District Court held that regulation of color and graphics overstepped the government's authority under the Family Smoking Prevention and Tobacco Control Act but affirmed other restrictions, such as the discretion to bar marketing claims such as "low tar" and "light," to require warnings on cigarette packages and cartons and to regulate the contents of tobacco products and publicize those ingredients.
The case was styled Commonwealth Brands, Inc., et al. v. United States of America, et al. (No. 1:09cv00117, W.D. Ky.).
The government is represented by Assistant Attorney General Tony West, U.S. Attorney David J. Hale, Deputy Assistant Attorney General Beth S. Brinkmann, staff attorneys Mark B. Stern, Alisa B. Klein, Mark R. Freeman, Sarang V. Damle, Samangha Chaifetz, Daniel Tenny and Benjamin S. Kingsley, Acting General Counsel Mark B. Childress, Food and Drug Division Chief Counsel Ralph S. Tyler, Deputy Chief Counsel for Litigation Eric M. Blumberg and Department of Health and Human Services Senior Counsel for Litigation Karen E. Schifter, all in Washington, D.C.
The plaintiffs are collectively represented by Charles E. English and E. Kenly Ames of English, Lucas, Priest & Owsley in Bowling Green, Ky. R.J. Reynolds Tobacco Co. and Conwood Co. are represented by Robert F. McDermott Jr., Hashim M. Mooppan and Noel J. Francisco of Jones Day in Washington. Lorillard Tobacco Co. is represented by Floyd Abrams and Joel Kurtzberg of Cahill, Gordon & Reindel in New York. The National Tobacco Co. is represented by LeAnne Moore of Louisville.
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