The U.S. Supreme Court denied a writ of certiorari filed by the tobacco companies challenging the advertising regulations promulgated pursuant to the Family Smoking Prevention and Tobacco Act.
Pursuant to the 2009 Act, the Food and Drug Administration issued new rules that required at least 50 percent of all cigarette packaging to be covered by a warning label that included both a color image and a written message such as “Smoking can kill you” or “Cigarettes are addictive.” The agency selected the images to be used, like a picture of a post-autopsy body and a man blowing smoke out of a tracheotomy hole.
The tobacco companies made two separate challenges to the rules. In the U.S. District Court for the District of Columbia, R.J. Reynolds, Lorillard, and Liggett Group, among others, sought an injunction against the enforcement of the new requirements. U.S. District Court Judge Richard J. Leon agreed that the “mandatory graphic images unconstitutionally compel speech” and that the tobacco companies would “suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA’s rules.” The FDA appealed, but the D.C. Circuit Court of Appeals affirmed.
At the same time, another group of tobacco companies filed a facial First Amendment challenge to the rules in their entirety – and got an entirely different result. A federal court judge in Kentucky upheld the rules, and the U.S. Court of Appeals for the Sixth Circuit affirmed, holding that “the Act’s warnings are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.”
The panel upheld the restriction on the marketing of modified-risk tobacco products (like “light” cigarettes); the bans on event sponsorship, branding of nontobacco merchandise, and free sampling; and the requirement that tobacco manufacturers reserve significant space for textual health warnings.
The defendants then filed cert with the U.S. Supreme Court, which the justices denied in late April.
While the Court’s cert denial allows the 6th Circuit to stand, the contested rules may never be enforced. The Solicitor General declined to file a writ of certiorari in the D.C. Circuit case and in a letter from U.S. Attorney General Eric H. Holder Jr. noted that the FDA plans to engage in “new rulemaking consistent with the Tobacco Control Act.”
Why it matters: The Supreme Court’s cert denial may leave the 6th Circuit decision intact, but because the FDA has indicated that it plans to engage in new rulemaking, the tobacco companies have effectively avoided compliance with the stringent new rules.