Ban on Color and Graphics in Tobacco Ads Thrown Out
A federal judge in Kentucky ruled that a new federal law giving the U.S. Food and Drug Administration jurisdiction over tobacco can’t prevent companies from using color and graphics to advertise their products.
U.S. District Judge Joseph H. McKinley Jr. ruled that provisions of the Family Smoking Prevention and Tobacco Control Act, signed into law by President Obama in June, violate the free-speech rights of advertisers.
McKinley, whose court is in Bowling Green, agreed with Reynolds American Inc.’s R.J. Reynolds Tobacco Co. and other companies that challenged the law, “that images of packages of their products, simple brand symbols, and some uses of color communicate important commercial information about their products.”
McKinley, whose opinion was released publicly today, also blocked a provision barring statements that tobacco products are less harmful because they are regulated by the FDA or comply with agency requirements. The judge declined cigarette makers’ request to strike down other provisions in the law.
Biggest Issue
“We are certainly pleased with the judge’s decision in finding that certain provisions of the law are unconstitutional, including what we believe was one of the biggest issues in the case — use of color and imagery in our advertising,” R.J. Reynolds spokesman David Howard said in an e-mailed statement.
Howard said the company continues to believe the other challenged provisions of the law are unconstitutional and is considering its options.
“FDA is pleased this ruling will allow us to continue, in large part, with the implementation of the tobacco control act to protect public health,” agency spokeswoman Kathleen Quinn said in an e-mailed statement today. “The agency will thoroughly review the opinion rendered by the judge.”
Anti-smoking groups, including the Campaign for Tobacco- Free Kids, American Cancer Society, American Heart Association and American Lung Association, issued a statement in which they hailed the decision for upholding most aspects of the law.
The groups disagreed with McKinley’s ruling that the bans on color and graphics and on statements implying greater safety because of FDA regulation are unconstitutional. The groups urged the government to appeal those parts of the ruling.
Adult Smokers
Reynolds, the second-largest U.S. cigarette maker, and third-biggest Lorillard Tobacco Co. sued in August to block the marketing restrictions. They claim the law goes far beyond discouraging kids from smoking and leaves them “virtually no means” to communicate with adult smokers and other tobacco users.
“We are gratified that the court upheld our free speech rights to use color and graphics in our advertising to communicate with our adult consumers,” Lorillard spokesman Michael Robinson said in an e-mailed statement.
Altria Group Inc.’s Philip Morris USA, which makes half of the cigarettes sold in the U.S., supported FDA regulation and endorsed the law. It is not involved in the suit.
In the ruling, McKinley upheld provisions in the law barring tobacco-related merchandise, such as caps and t-shirts, banning sponsorship of concerts and sporting events and requiring that ads and packages carry new safety warnings.
The case is: Commonwealth Brands Inc. v. U.S., 09-Civ.-117, U.S. District Court, Western District of Kentucky (Bowling Green).
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