T H E I N D U S T R Y A U T H O R I T Y O N T O B A C C O R E T A I L I N G Official Publication of the International Premium Cigar & Pipe Retailers Association (IPCPR) JUNE 2012 NATO Show 2012 Second Annual Trade Show Offered More Exhibitors, Seminars > Seminar and New Merchandise Reports PLUS: > Jameson Cigar’s Rising Young Gun, Brad Mayo > Back to Court for FDA’s Graphic Warning Labels
> REGULATION FOCUS warnings to occupy the top 50 percent of the front and back panels of all cigarette packages, the top 30 percent of all smoke- less tobacco packages, and the top 20 percent of all tobacco advertising. On June 22, 2011, FDA published its final rule, which revealed the nine graph- ic images that are to be included on ciga- rette packaging and advertisements. These graphics included color images of: a man exhaling cigarette smoke through a tracheotomy hole; a plume of cigarette Courts Disagree on smoke enveloping an infant receiving a kiss from its mother; a pair of diseased lungs next to a pair of healthy lungs; a Tobacco Warnings diseased mouth afflicted with cancerous lesions; a man breathing into an oxygen mask; a bare-chest male cadaver lying on The battle over graphic warning labels rages on: Two federal courts a table; a woman weeping uncontrol- split over the constitutionality of the FDA’s warning label requirement, lably; and a man wearing a t-shirt featur- possibly leading to a showdown before the supreme court. ing a “no smoking” symbol and the words “I QUIT.” >BY TROUTMAN SANDERS TOBACCO TEAM APPELLATE COURT UPHOLDS I n a split decision issued on March terized as a commercial-speech disclo- WARNING REQUIREMENT 19, 2012, a three judge panel of the sure requirement, rather than as com- In determining whether the Act’s graph- United States Court of Appeals for pelled commercial speech. The Court ic image requirement was constitution- the Sixth Circuit upheld the provisions found the disclosure requirement was al, the Sixth Circuit first examined of the Family Smoking Prevention and reasonably related to the government’s whether the images could accurately Tobacco Control Act (the “Act”) requir- purpose of preventing consumer convey factual information and, there- ing graphic warning labels on cigarette deception concerning the health risks fore, permitted as merely a government- packaging and advertisements. The of tobacco use. mandated disclosure subject to a lesser Sixth Circuit’s decision differs starkly The D.C. District Court, on the rational basis review, or whether the from the February 29, 2012 ruling of the other hand, was charged with deter- images would be considered generally United States District Court for the mining whether FDA’s specified nine as compelled speech, which is subject to District of Columbia, which held that graphic images on tobacco packaging a stricter analysis. the Food and Drug Administration’s and advertisements unconstitutionally The Court likened the Act’s graphic nine chosen graphic labels violated the compelled speech. The D.C. District image requirement to the use of pictures plaintiff-tobacco companies’ right of Court, as discussed below, found that and diagrams in text books. Specifically, free speech under the First FDA’s rule essentially required tobacco the Sixth Circuit stated that,”[s]tudents in Amendment. The courts’ ultimate deci- companies to be spokesmen for the biology, human anatomy, and medical sions, however, were not the only dif- government’s anti-tobacco agenda, school courses look at pictures or draw- ferences in these two cases. which was not only too burdensome ings in textbooks of both healthy and The Sixth Circuit addressed only a for these companies, but also was com- damaged cells, tissues, organs, organ sys- facial challenge to the constitutionality pelled speech that was not permissible tems, and humans because those pictures of the Act’s graphic image requirement. under the Constitution. convey factual information about med- This means that the court was tasked ical conditions and biological systems.” with determining whether the Act’s NEW WARNING LABELS As such, the Court found that if a picture graphic image requirement, itself, was In addition to mandating several textual or drawing can accurately represent a allowable under the Constitution, not warnings, the Act requires the Secretary medical condition or body part in a text whether the specific images chosen by of the U.S. Department of Health and book, then the graphics required under FDA were constitutional. The Sixth Human Services to “issue regulations the Act can also accurately represent a Circuit ultimately concluded, albeit not that require color graphics depicting the negative health consequence of smoking, unanimously, that the Act’s graphic negative health consequences of smok- such as a cancerous lung. Since it found image requirement should be charac- ing.” The Act also requires the new that the Act’s graphic image requirement 48 SMOKESHOP June 2012
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