AAF Government Report

November 30, 2012

Clark Rector Jr., Executive Vice President – Government Affairs

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AAF Asks Supreme Court to Take Up Commercial Speech Case

The American Advertising Federation has filed a "friend of the court” brief asking the U.S. Supreme Court to hear the appeal of a Sixth Circuit Court of Appeals decision in Discount Tobacco City & Lottery v. U.S., that largely upheld the constitutionality of the Tobacco Control Act requiring tobacco companies to place prominent graphic warnings on cigarette packaging and in advertising.   

The brief argues that "these restrictions and requirements strike at the heart of advertiser rights to convey truthful information about legal products to adults." Ultimately, the issues are not about tobacco but the ability to truthfully advertise legal products and services to legal consumers. Should the restrictions be upheld, the advertising for any number of disfavored products could be at risk.

The decision in Discount Tobacco contradicted much of the decision of the D.C. Court of Appeals in R.J. Reynolds v. FDA that largely struck down the advertising restrictions in the Tobacco Control Act.  While not exactly the same, the issues are similar enough that the cases are likely to be consolidated if and when they are heard by the Supreme Court. 
The Court will announce whether it will take up the case next year.  Oral arguments and briefs would occur in the fall of 2013.

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