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

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

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"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."