Fair Warning?: The First Amendment, Compelled Commercial Disclosures, and Cigarette Warning Labels

By Straub, Timothy J. | Fordham Urban Law Journal, March 2013 | Go to article overview

Fair Warning?: The First Amendment, Compelled Commercial Disclosures, and Cigarette Warning Labels


Straub, Timothy J., Fordham Urban Law Journal


B. Litigation Over the Tobacco Control Act's Cigarette Warning Labels

1. Discount Tobacco City & Lottery Inc. v. United States

On August 31, 2009, shortly after the enactment of the Tobacco Control Act, five tobacco companies and a tobacco retailer filed suit in the Western District of Kentucky. (194) In the resulting litigation, Commonwealth Brands, Inc. v. United States, the companies challenged each provision of the Act that implicated the First Amendment. (195) The court ultimately enjoined enforcement of two provisions: a ban on color graphics in tobacco advertisements and a ban on claims implying tobacco products are safer as a result of FDA regulation. (196) The district court concluded that every other provision withstood the tobacco companies' challenge, including the provision requiring the cigarette packs to display the new graphic warning labels. (197)

The district court's discussion of the graphic cigarette warning labels is notable for two reasons. First, it failed to distinguish between restrictions on speech and compulsions of speech. (198) The Commonwealth Brands court applied Central Hudson's four-step analysis to the provisions of the Act restricting tobacco advertising as well as to the inchoate cigarette label warnings. (199) Second, the FDA had not promulgated the final version of the graphics by the time the case was decided. The court stated, nonetheless, that it did not believe "the addition of a graphic image [would] alter the substance of [the government's] message[], at least as a general rule." (200)

Both the tobacco companies and the United States appealed the Western District of Kentucky's decision, and on March 19, 2012, the Sixth Circuit issued its opinion in the case, recaptioned as Discount Tobacco City & Lottery Inc. v. United States. (201) With the exception of the graphic warning labels, the panel agreed on the constitutionality of each challenged provision of the Tobacco Control Act. (202) Judge Eric L. Clay, who authored the otherwise unanimous opinion, split with his fellow judges on the graphic warning labels' constitutionality. He dissented, arguing that the graphic aspects of the warning labels violated the First Amendment. (203) The other judges, Judge Jane B. Stranch joined by Judge Michael R. Barrett, upheld the constitutionality of the graphic warning label provision of the Tobacco Control Act. (204)

At the outset, the majority emphasized that it would construe the tobacco companies' challenge facially, rather than as-applied. (205) This meant the court would consider the constitutionality of the provision generally; it would not analyze the nine images published in the FDA's June 2011 Final Rule. (206) For the tobacco companies' facial challenge to succeed, they would have to convince the court that the underlying provision of the Tobacco Control Act offended the First Amendment regardless of which images the FDA ultimately published. (207) The Discount Tobacco City court cited four reasons for restraining itself to a facial assessment of the act's warning label provision. First, the court refused to assess any specific image because the FDA published the Final Rule only one month prior to oral arguments and the selected warnings would not appear until well after arguments. (208) Second, there could be no appellate review of any specific images because, according to the majority, the district court had not ruled on any specific images. (209) Third, the majority emphasized that the tobacco companies' own litigation strategy sought to independently challenge the finalized warning labels in a separate suit, namely R.J. Reynolds v. FDA. (210) Finally, granting the relief that the tobacco companies requested--striking down the warning labels for all tobacco producers and sellers, not merely the parties before the court--required the court to issue a facial ruling on the challenged legislation. (211) According to the majority, "Addressing the specific images would require us to reach a constitutional question that was neither briefed nor argued and turns on facts not available, litigated, or considered by the district court, all of which would fly in the face of the restraint we should exercise during judicial review.

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Fair Warning?: The First Amendment, Compelled Commercial Disclosures, and Cigarette Warning Labels
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