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What is the latest on the federal lawsuit filed by the major tobacco companies challenging the new FDA law?

In August 2009, major tobacco companies filed a lawsuit in federal court in Western Kentucky challenging several provisions of the Family Smoking Prevention and Tobacco Control Act (the FDA law). On January 5, 2010, the federal district court in Kentucky issued a decision in the case. For more information on the claims made in the lawsuit, see TALC’s FAQ, “I heard that tobacco companies have challenged the new FDA law. What is the lawsuit about and how will it affect the law’s implementation?”

The court ruled in favor of the tobacco companies and held that two parts of the FDA law should be struck down: 1) a ban on color and graphics in tobacco labels and advertising, and 2) the government’s ban on claims implying that a tobacco product is safer because of FDA regulation and approval. The court held that these portions of the FDA law violated the First Amendment of the U.S. Constitution because they restricted too much of the tobacco companies’ speech.

 The court upheld many other parts of the FDA law, including:

  • a ban on brand-name sponsorships and merchandising,
  • a ban on tobacco companies making health claims about tobacco products without FDA review,
  • required large graphic warning labels on tobacco packages,
  • a ban on the distribution of free samples and gifts with purchases, and 
  • the ability of the FDA and state and local governments to enact additional marketing restrictions on tobacco.

 A copy of the decision is available at http://howappealing.law.com/Commonwealth-USA-Decision.pdf.

 Either the tobacco companies or the government could appeal the decision to the U.S. Court of Appeals for the Sixth Circuit. A decision by the Sixth Circuit Court of Appeals would only directly affect Kentucky, Michigan, Ohio, and Tennessee. If the Sixth Circuit issues a decision in this case, it is likely that the losing party would appeal the case to the U.S. Supreme Court.

 A decision by the Supreme Court, while probably years away, would affect the entire country. If the Supreme Court ultimately decides that any of the FDA law’s provisions are unconstitutional, similar local laws nationwide would become unenforceable.