TOBACCO CONTROL LAWS

Commonwealth Brands, Inc., et al. v. United States, et al.

Several tobacco companies challenged the constitutionality of a federal tobacco control law that placed various restrictions on advertising in an effort to decrease the incidence of tobacco use among young people.  Among other things, the law: (1) required that text on advertisements and labels be printed in black against a white background; (2) mandated that graphic warnings be displayed on a specified portion of product packaging and advertisements; (3) prohibited the conveyance of information that a certain tobacco product posed less health risks than others; (4) restricted all outdoor advertising within 1,000 feet of playgrounds and schools; (5) prohibited sponsorship of certain events; and (6) prohibited distribution of a variety promotional items.  The Court held that most of the challenged regulations withstood the free speech and due process allegations levied by the tobacco companies.  However, the Court found that two restrictions constituted overly broad regulations of speech: (1) the ban on colors and graphics in advertising; and (2) the prohibition on stating or implying that compliance with government regulations lessened the health risks of tobacco products. Additionally, the Court found that the restriction on outdoor advertising was not a current controversy ripe for judicial review and that the Court lacked jurisdiction to determine whether the restrictions comprised an unconstitutional taking of property.

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Commonwealth Brands, Inc., et al. v. United States, et al., 678 F. Supp. 2d 512, United States District Court, Western District of Kentucky (2010).

  • United States
  • Jan 14, 2010
  • U.S. District Court, Western District of Kentucky, Bowling Green Division
View Case History

Parties

Plaintiff

  • Commonwealth Brands, Inc.
  • Conwood Company, LLC
  • Discount Tobacco City and Lottery, Inc.
  • Lorillard Tobacco Company
  • National Tobacco Company, L.P.
  • R. J. Reynolds Tobacco Company

Defendant

  • Kathleen Sebelius, Secretary of the United States Department of Health and Human Services
  • Margaret Hamburg, Commissioner of the United States Food and Drug Administration
  • United States Food and Drug Administration
  • United States of America

Legislation Cited

Child Health Insurance Program Act, Rate of Tax for Tobacco Products and Cigarette Papers and Tubes, 26 USC § 5701

Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, June 22, 2009

Cigarettes and Smokeless Tobacco Regulation, 21 C.F.R. Part 897

Federal Food, Drug, and Cosmetic Act, Tobacco Products, 21 USC §§ 387 - 387u

Federal Cigarette Labeling and Advertising Act (as amended), 15 USC §§ 1331 - 1341

International/Regional Instruments Cited

WHO Framework Convention on Tobacco Control (WHO FCTC)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Right to Property
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Legal Product
Tobacco is a legal product and the tobacco industry is a legal industry.
Non-Mandatory WHO FCTC Guidelines
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.
Undue Burden
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.

Type of Tobacco Product

None

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