Alert: Decision in Tobacco Advertising Case

To: AAF Members
From:Clark Rector, Executive Vice President-Government Affairs
Re: Decision in Tobacco Advertising Case

Attached is the U.S. District Court’s decision in Commonwealth Brands v. U.S. which challenged the law passed last summer authorizing the Food and Drug Administration to enact unprecedented restrictions on tobacco advertising.  While the case is limited to tobacco, it obviously has implications for proposed restrictions on the advertising for other products.

The decision seems to be at least a partial victory for commercial speech.  The court specifically struck down the provisions banning the use of colors and images in advertising.  It also struck down the ban on references to FDA regulation of tobacco.  The court stated that the 1,000 foot restriction on outdoor advertising around schools and other locations was almost certainly unconstitutional based on a prior Supreme Court decision, but declined to rule on the issue since the FDA has not yet issued specific regulations.

The court let stand a ban on tobacco brand name sponsorships of athletic and other events as well as a ban on brand names on merchandise such as caps, t-shirts, sporting goods, etc.  The court also let stand a provision allowing federal agencies and state and local governments to enact more stringent regulations, and a requirement mandating the top 50% of the front and back of cigarette packaging and 30% of smokeless tobacco packaging be used for warning statements.

Please do not hesitate to contact me if you have any comments or questions.