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.