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.
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
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.
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)
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.
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.
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.
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
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.
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.
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
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Plaintiffs' argument that the new warnings are too large and too prominent is unpersuasive. Unlike Entertainment Software, where the state failed to give any reason for why a smaller warning would be inappropriate, Congress has provided reasons for the particular features of the warning requirement here. Most obviously, it relied on the international consensus reflected in the World Health Organization's Framework Convention on Tobacco Control, which calls for warnings that "shall be rotating," "shall be large, clear, visible and legible," "should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas," and "may be in the form of or include pictures or pictograms." WHO Framework Convention on Tobacco Control, art. 11.1(b). Its requirements track this recommendation: warnings on cigarette packs must include images and "comprise the top 50 percent of the front and rear panels," § 1333(a)(2); warnings on smokeless tobacco packs may include images and must be "located on the 2 principal display panels of the package," and "comprise 30 percent of such display," § 4402(a)(2); and warnings in "press and poster advertisements" must comprise 20% of the area of the advertisement. Id. §§ 1333(b)(2), 4402(b)(2)(B). This is not, as Plaintiffs contend, too burdensome, for half of cigarette packs, 70% of smokeless tobacco packages, and 80% of advertisements remain available for their speech."
"Plaintiffs next argue that the Act "further authorizes federal agencies, state and local governments, and Indian tribes to enact even `more stringent' regulations." § 101(b)(3) (adding 21 U.S.C. § 387p(a)(1)); § 203 (adding 15 U.S.C. § 1334(c)). In their view, this "authorization" is an unconstitutional delegation of legislative power because the Act provides "`literally no guidance ... for the exercise of discretion'—much less the constitutionally required `intelligible principle.'" (Plaintiffs' Brief, p. 55) (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)). The Court disagrees. This provision does not authorize further restrictions, it simply states that it does not limit such restrictions: "nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority" of federal, state, local, and tribal governments to "adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter." 21 U.S.C. § 387p. As this language does not constitute a delegation of Legislative power, unconstitutional or otherwise, Plaintiffs' argument must be rejected."
"The Court therefore concludes that the ban on color and graphics fails review. As the Supreme Court explained in Central Hudson, "the regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest... nor can it completely suppress information when narrower restrictions on expression would serve its interest as well." Central Hudson, 447 U.S. at 565, 100 S.Ct. 2343; cf. Zauderer, 471 U.S. at 648, 105 S.Ct. 2265 (finding law unconstitutional where there was no "evidence or authority of any kind for the government's contention that the potential abuses associated with the use of illustrations in attorneys' advertising could not be combated by any means short of a blanket ban."). Because Congress could have exempted large categories of innocuous images and colors—e.g., images that teach adult consumers how to use novel tobacco products, images that merely identify products and producers, and colors that communicate information about the nature of a product, at least where such colors and images have no special appeal to youth—the Act's "blanket ban" on all uses of color and images in tobacco labels and advertising has a "uniformly broad sweep... that demonstrates a lack of tailoring." Lorillard, 533 U.S. at 563, 121 S.Ct. 2404."
"Plaintiffs' last argument fares better. They are clearly right when they say that images of packages of their products, simple brand
symbols, and some uses of color communicate important commercial information about their products, i.e., what the product is and who makes it. Bates, 433 U.S. at 364, 97 S.Ct. 2691. The government's contrary suggestion—that all use of images in tobacco labels and advertising create noninformative associations of the sort likely to encourage minors to use a tobacco product—is plainly wrong. There is no suggestion in any of the literature cited by the government that symbols such as National's Beech-Nut chewing tobacco insignia, Conwood's sketch of its original Levi Garrett tobacco factory, the color of Lorillard's Newport menthol cigarette packaging, or illustrations such as Reynolds' depiction of how its new Camel Crush menthol product works, are a part of what Congress found to be problematic associative advertising techniques aimed at minors. Nor is it enough to say, as the government does, that these sorts of symbols and images can be replaced by text at no informational cost, for, at the very least, a symbol is often able to communicate the same information in a smaller amount of space and thereby leave more room for commercial speech."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.