FDA – 1st Amendment challenge

Well that didn’t take long as Reynolds American and Lorillard filed legal challenges last week to the FDA’s ability to restrict tobacco advertising – under the First Amendment of the US constitution.

Don’t hope for an early resolution as before this is all over it will almost certainly go all the way to the Supreme Court who should rule it unconstitutional.

But will they?

The Tobacco Industry stands by its right to communicate freely with its customers.

The FDA / public health community says tobacco advertising should be banned or restricted.

What’s you view?

An interesting side show will be the resrictions on future communications of lower risk products. How do you get this message out in a restrictive advertising market?


#1 Renegade on 09.14.09 at 2:41 AM

We are presently in a period when liberal agendas are looking at ways to deter the freedom of speech to those that have a differing opinion. What makes one think that the tobacco folks have any chance? Could we not be loosing our rights as personal constituents in this country being lead by those who wish to deny personal freedoms of its citizens?

#2 Copenhagen Charlie on 09.16.09 at 12:48 PM

Of course Altria will take the high road. What a hypocritical company? Do they really care about the industry? NO! Just care about Altria! And what in the world are they thinking about making Cope wintergreen. One word! IDIOTS

#3 Copenhagen Charlie on 09.16.09 at 12:50 PM

So now that Altria has few token folks offered jobs fro the once great USST organization. Who will lead them? Hey Pete you ever dip? So where did Dan Butler go?

#4 Desert Dude on 10.02.09 at 6:12 PM

The foundations of this country are slowly being destroyed. What a shame! I think you blog guys need to find a way to get the consumers riled up!

#5 Patriot on 10.11.09 at 2:25 PM

I believe that if there is a message of harm reduction that the public needs to hear that the message as long as it’s not a “smoke screen” to advertise should be communicated properly!

#6 Iain on 10.15.09 at 6:32 PM

A). This bill was in the works before the present administration took office.
B.) The first amendment argument will never work. Do you think the pharmaceutical industry hasn’t tried the same argument about restricting drug advertising? Trust me the first amendment argument is a loser because commercial speech doesn’t have as much protection as individual and political speech.
Frankly what can the Tobacco companies tell me that I don’t know? I already know what I like to smoke.

#7 TAZ on 01.11.10 at 11:24 PM

United States
Ruling on a lawsuit filed by R.J. Reynolds Tobacco Co., Lorillard Inc., and other tobacco companies challenging certain provisions in the Family Smoking Prevention and Tobacco Control Act, Judge Joseph H. McKinley Jr. of US District Court for the Western District of Kentucky on January 5th upheld most of the new marketing restrictions prescribed in the legislation, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise, and a requirement that warning labels cover 50% of tobacco product packs, while overturning two of the restrictions, a ban on the use of color and graphics in tobacco advertising and a prohibition on claims that tobacco products are safe or less harmful by virtue of the FDA’s oversight, saying these regulations violated the industry’s free speech rights. (Associated Press – AP 01/05)

#8 Bill Godshall on 01.14.10 at 2:24 PM

Judge McKinley’s ruling on the FDA law is at:

The Appeals and Supreme Courts are likely to uphold most of McKinley’s ruling, but may overturn some.

McKinley’s striking down of the black-and-white thombstone advertising provision in the FDA law (that would ban most color advertisements for tobacco) was a huge victory for the tobacco industry.

McKinley also ruled unconstitutional the FDA law’s outdoor advertising ban withing 1,000 feet of schools, playgrounds and parks, which I’ve predicted would occur since 2004 (because the SCOTUS already struck down the same provision as unconstitutional back in 2001). But since the FDA hasn’t yet issued the regulations, McKinley ruled that it wasn’t yet ripe to strike down the provision yet.

The vast majority of the other advertising, promotion and sponsorship restrictions in the FDA law (that were upheld by McKinley) are already the status quo (as they were already in the 1998 MSA).

As one who urged Sen. Enzi to offer the amendment requiring color graphic warnings covering 50% of cigarettes packs, I was pleased that McKinley upheld that provision as constitutional.

McKinley’s ruling on Modified Risk Tobacco Products was unclear, and he obviously didn’t understand the scientific consensus that smokefree tobacco products are far less hazardous alternatives to cigarettes. I expect the Appeals and Supreme Courts to deal in greater detail with this issue.

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