Discount Tobacco City & Lottery v. United States of America
The federal appeals court upheld most provisions of the new law giving the U.S. Food and Drug Administration (FDA) the power to regulate tobacco products, including the requirement for large, graphic warnings on cigarette packs. This ruling affirms the authority of the FDA to take critical action to prevent the tobacco industry from continuing to target children and mislead the American public. The court majority found that the law’s requirement for large, graphic cigarette warning labels “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.” The court found that the warnings “do not impose any restriction on Plaintiff’s dissemination of speech, nor do they touch on Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”
The court also upheld key provisions of the law that: (1) Prohibit tobacco companies from making health claims about tobacco products without FDA review; (2) Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, and free samples of tobacco products; and (3) Prohibit tobacco companies from making statements implying that a tobacco product is safer because it is regulated by the FDA.
The ruling struck down two provisions of the law: one that bans the use of color and imagery in tobacco advertising in locations viewed by large numbers of youth and a second that prohibits free gifts with purchase of tobacco products. While the court struck down the ban on color and imagery as overly broad, it indicated it would uphold a narrower ban that applied to media and situations where the government demonstrated the impact on children.
The U.S. Supreme Court declined to hear the appeal and denied a writ of certiorari on April 22, 2013.
The Campaign Tobacco-Free Kids and other public health groups filed an amicus brief urging the court to uphold the restrictions (see "Related Documents").
Discount Tobacco City & Lottery, et al. v. United States, et al., 674 F.3d 509 (6th Cir., 2012).
United States
Mar 19, 2012
U.S. Court of Appeals for the Sixth Circuit, Supreme Court of United States (cert denied)
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.
"Nearly fifty years ago, the Supreme Court upheld the proposition that, ―[t]o avoid giving a false impression that smoking [is] innocuous, the cigarette manufacturer who represents the alleged pleasures or satisfactions of cigarette smoking in his advertising must also disclose the serious risks to life that smoking involves. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting 29 Fed.Reg. 8356 (1964)). Like other disclosures governed by the Zauderer standard, these tobacco disclosures may ―appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive. Va. State Bd. of Pharmacy, 425 U.S. at 772 n. 24, 96 S.Ct. 1817. Plaintiffs argument for strict scrutiny is therefore unsupported."
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.
The federal appeals court upheld most provisions of the new law giving the U.S. Food and Drug Administration (FDA) the power to regulate tobacco products, including the requirement for large, graphic warnings on cigarette packs. This ruling affirms the authority of the FDA to take critical action to prevent the tobacco industry from continuing to target children and mislead the American public. The court majority found that the law’s requirement for large, graphic cigarette warning labels “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.” The court found that the warnings “do not impose any restriction on Plaintiff’s dissemination of speech, nor do they touch on Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”
The court also upheld key provisions of the law that: (1) Prohibit tobacco companies from making health claims about tobacco products without FDA review; (2) Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, and free samples of tobacco products; and (3) Prohibit tobacco companies from making statements implying that a tobacco product is safer because it is regulated by the FDA.
The ruling struck down two provisions of the law: one that bans the use of color and imagery in tobacco advertising in locations viewed by large numbers of youth and a second that prohibits free gifts with purchase of tobacco products. While the court struck down the ban on color and imagery as overly broad, it indicated it would uphold a narrower ban that applied to media and situations where the government demonstrated the impact on children.
The U.S. Supreme Court declined to hear the appeal and denied a writ of certiorari on April 22, 2013.
The Campaign Tobacco-Free Kids and other public health groups filed an amicus brief urging the court to uphold the restrictions (see "Related Documents").