U.S. judge upholds most limits on tobacco marketing

NEW YORK Tue Jan 5, 2010 6:25pm EST

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NEW YORK (Reuters) - A U.S. judge upheld much of a sweeping federal law limiting the marketing of cigarettes through sponsorships and on merchandise, in a ruling tobacco opponents claimed as a victory.

The judge struck down some modest restrictions on color and graphics in tobacco and on labels that tobacco companies said violated their free speech rights.

U.S. District Judge Joseph McKinley approved bans on sponsorships of athletic, cultural and social events and the use of tobacco imagery on such things as caps and T-shirts, rejecting the companies' argument that the ban was too broad and failed to differentiate between adults and children.

He also upheld a requirement that warning labels cover half of the front and back of the packaging of tobacco products.

The Bowling Green, Kentucky-based judge, however, set aside a ban on color and graphics on labels and in advertising, which the tobacco companies said violated the U.S. Constitution. He also rejected a ban on statements that tobacco products are safe or less harmful by virtue of the FDA regulating them.

"The government, by far, came out better," said Richard Daynard, a professor at Northeastern University School of Law in Boston who chairs its Tobacco Products Liability Project. "It is a very thoughtful opinion, which largely upheld the statute against a blunderbuss attack by the industry."

Like some other legal experts, he expects the case to end up before the U.S. Supreme Court.

Filed last August, the suit arose from a sweeping law signed last June 22 by President Barack Obama that for the first time gave the U.S. Food and Drug Administration broad powers over cigarette and tobacco products.

Reynolds American Inc's R.J. Reynolds Tobacco Co and Lorillard Inc, the second- and third-largest U.S. tobacco companies, sought to void the law.

They were joined by Commonwealth Brands Inc, which is owned by Britain's Imperial Tobacco Group Plc; the National Tobacco Co, and retailer Discount Tobacco City & Lottery Inc.

Altria Group Inc, which makes Marlboro cigarettes and is the largest U.S. tobacco company, supported the law and was not involved in the case.

REACTIONS

FDA spokeswoman Kathleen Quinn said the ruling "will allow us to continue, in large part, with the implementation of the tobacco control act to protect public health." She said the agency was pleased with the ruling and will review it.

R.J. Reynolds spokesman David Howard said the company would also review the opinion, saying that while it was pleased parts of the law were struck down, it had "strong opinions" that other parts remained unconstitutional.

Frank Hinton, owner of Discount Tobacco, also faulted the ruling. "To tell me how I can advertise products on the inside of my store, that's just not right," he said.

Lorillard spokesman Michael Robinson said his company was "gratified" at the ruling on color and graphics. National Tobacco declined to comment. American Snuff was not immediately available for comment.

SOME LIMITS NOT OVERBROAD

In his 47-page opinion, McKinley cited congressional findings in deciding to preclude tobacco companies from distributing such things as clothing and sporting goods with tobacco names or logos.

"There is no way to limit the distribution of these items to adults only," he wrote. Even if there were, the judge added, adults would become "walking advertisements" for the idea that "tobacco use is widely accepted, which is extremely important to children and adolescents."

Yet he wrote that the tobacco companies are "clearly right" in arguing that some labeling, such as the color of Lorillard's packaging for Newport menthol products, was not what Congress was targeting in trying to protect children.

"The act's 'blanket ban' on all uses of color and images in tobacco labels and advertising has a 'uniformly broad sweep'" too wide for what Congress intended, McKinley wrote.

Matthew Myers, president of the Campaign for Tobacco-Free Kids, in a statement called the ruling "an important step toward ending the special protection the tobacco industry has enjoyed for too long and finally regulating tobacco products to protect our children and the nation's health."

Daynard added that the ruling was a setback for tobacco companies given that they "no doubt" sued in Kentucky "looking for a favorable federal judge."

According to a report by the Centers for Disease Control and Prevention, half of Kentucky adults smoke, a higher percentage than in any other state.

The case is Commonwealth Brands Inc et al vs. United States, U.S. District Court, Western District of Kentucky, No. 09-117.

(Additional reporting by Jeremy Pelofsky and Lisa Richwine in Washington, D.C. and Dhanya Skariachan and Phil Wahba in New York; editing by David Alexander, Andre Grenon and Steve Orlofsky)

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