AAF Government Report

March 23, 2012

Clark Rector Jr., Executive Vice President – Government Affairs

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Advertising, Packaging Warnings Cleared by Circuit Court

On March 19, the United States Sixth Circuit Court of Appeals largely upheld the constitutionality of provisions of the Tobacco Control Act requiring tobacco companies to place prominent graphic warnings on cigarette packaging and in advertising.  While there are some differences, the ruling in this case, Discount Tobacco City & Lottery v. U.S., 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 Discount Tobacco decision was favorable towards commercial speech rights.  It upheld the right of companies to use colors and images in advertising and on packaging, holding that the requirement for only black text on a white background was overbroad and unconstitutional.

The Discount Tobacco case was much wider 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.  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.

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