Reynolds Tobacco Company of America, et. al. v FDA

11-01482

        Ever since the Surgen General's Report on the Hazards of Tobacco Smoking was released in 1964,much time and effort has been spent trying to reduce the number of folks who smoke.  These efforts have been vehemently resisted by tobacco companies and their legislative supporters in tobacco growing states.  It took a herculean effort to require the current warning on cigarette packs, and to place restrictions on the place and manner of tobacco advertisement.  Prevention efforts on behalf of government agencies and private organizations have met with moderate success, though the Centers for Disease  Control (CDC) estimates that 46 million persons currently use tobacco in one form or another.  Reacting to public pressure in the late 1990's the federal Food and Drug Administration took further steps to regulate the tobacco industry, including an ingrediants labeling requirement, and a requirement that companies quit using such words as "lights" or "extra Light" in advertising products or on package labels.  In FDA v. Brown & Williamson Tobacco Corp. (2000) the U S Supreme Court ruled that Congress had NOT granted the FDA authority to issue such regulations.  Eventually Congress passed HR 1256, the Family Smoking Prevention and Tobacco Act, Signed into law by President Obama in July of 2009.  Key provisions of the Act are as follows:

• Creates a tobacco control center within the FDA and gives the FDA authority to regulate the content, marketing and sale of tobacco products.
• Requires tobacco companies and importers to reveal all product ingredients and seek FDA approval for any new tobacco products.
• Allows the FDA to change tobacco product content.
  • The ban on flavoring applies to any product meeting the definition of a "cigarette" according to section 3(1) of the Federal Cigarette Labeling and Advertising Act. This includes any tobacco that comes rolled such as cigarettes and cigars, and added to this definition in the Family Smoking Prevention and Tobacco Control Act is any tobacco with the purpose to be rolled such as rolling tobacco.
• Calls for new rules to prevent sales except through direct, face-to-face exchanges between a retailer and a consumer.
• Limits advertising that could attract young smokers.
• Requires cigarette warning labels to cover 50 percent of the front and rear of each pack, with the word warning in capital letters.
• Requires FDA approval for the use of expressions such as "light, "mild" or "low" that give the impression that a particular tobacco product poses less of a health risk.

The bill makes no provisions that ban the import of the banned items for personal consumption, only for "sale or distribution". (Division A Title II Section 201)  

        The American Cancer Society and American Heart Association strongly supported the legislation; while others, not all of whom support the tobacco industry, cast doubts concerning the effective of the measure. (See, for example, USA Today,http://yourlife.usatoday.com/health/story/2011/06/FDA-issues-graphic-cigarette-labels/48676990/1\, and  Siegel, Michael (2009-06-03). "Tobacco regulations are no regulations at all". Los Angeles Time. http://www.latimes.com/news/opinion/commentary/la-oe-siegel3-2009jun03,0,1905325.story.

        In July, 2011, the FDA approved 9 graphic warnings that must appear on cigarette packages and advertisements.  Such warnings might include corpses, or pictures of cancerous lungs, etc.    Subsequently, three of America's four largest companies (for reasons not altogether altruistic, Phillip Morris supports the legislation), filed suit, challenging the labeling requirements of the legislation and FDA requirements.  Their claim is that the government action forces the companies to discourage use of a legal product, thus infringing on commercial free speech rights.

    Currently, there are no published briefs, but for purposes of this course, assume the following;

The Companies argue that labeling and advertising constitutes commercial free speech as specified in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York 441 U S 557 (1980).  This case is similar to West Virginia v Barnett (1943), Hurley v. Irish Gay Group of Boston (1995) and  Boy Scouts of America v Dale (2000), rendering the legislation and regulations unconstitutional, in that they force the companies to espouse something in which they do not believe, thus "doing the government's job for it."  Even assuming the government has a valid public health interest here, the legislation and regulations fail to meet the rationality test.  (See for example,  United States v Lopez (1995).

On the other hand, the government argues that there is a "compelling national interest in public health" given a recent CDC report predicting that in 2011, nearly half a million folks will die from preventable smoking related diseases.  The graphic warnings are an effective means of reducing the number of young adults who will become addicted to cigarettes, thus clearly meeting the "rationality" test.  Though the packaging labels and advertising might meet the commercial free speech requirements as per Hudson, they do not fall into the realm of "protected commercial speech," see, for example Lorrilard Tobacco Co. v Reilly.  Even were they to meet the protected speech criteria, the doctrine of proportionality (See Justice Breyer's explanation of this doctrine in Making Democracy Work), renders both the statute and subsequent FDA regulation constitutional.  

Assume the Circuit Court sided with the FDA with respect to the legislation and regulation.  The case is now in your hands.