Alert: March 20, 2012

AAF Government Alert | 1st Amendment Ruling
On March 19, the United States Sixth Circuit Court of Appeals, in Discount Tobacco City & Lottery V. U.S., largely upheld the constitutionality of the Tobacco Control Act requiring tobacco companies to place prominent graphic warnings on cigarette packaging and in advertising. While there are some differences in the cases, the ruling is at odds with the recent permanent injunction issued by a U.S. District Judge in R.J. Reynolds v. U.S. which held that the graphic warnings are unconstitutional.

One aspect of the Sixth Circuit’s ruling was favorable towards commercial speech rights. It upheld the right to use colors and images in advertising and on packaging, ruling that the requirement for only black text on a white background was overbroad and unconstitutional.

The Discount Tobacco case was much broader in scope than R.J. Reynolds. It also dealt with provisions of the law restricting such activities as sponsorships, merchandising and sampling. These restrictions were also largely affirmed by the Court. The challenge in R.J. Reynolds was to the specific graphic warnings issued by the Food and Drug Administration. The AAF filed an amicus brief in R.J. Reynolds.

The R.J. Reynolds case will be heard in the Washington appeals court in April. Should the rulings continue to be in conflict, the issue may finally be settled in the U.S. Supreme Court.

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

Clark Rector
Executive Vice President-Government Affairs
American Advertising Federation
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