Tobacco companies get marginal success in challenge to law

By John O'Brien | Jan 7, 2010

BOWLING GREEN, Ky. (Legal Newsline) - The challenge of a new federal tobacco law has resulted in restrictions on color advertising being lifted.

U.S. District Judge Joseph McKinley issued his decision Tuesday in granting partial summary judgment to six tobacco companies that challenged the Family Smoking Prevention and Tobacco Control Act.

The act prohibits them from using color lettering, trademarks, logos or any other imagery in most advertisements. Black text must be used on a white background.

"(Plaintiffs) are clearly right when they say that images of packages of their products, simple brand symbols, and some uses of color communicate important commercial information about their products, i.e., what the product is and who makes it," the decision says.

"The government's contrary suggestion - that all use of images in tobacco labels and advertising create noninformative associations of the sort likely to encourage minors to use a tobacco product - is plainly wrong."

McKinley also sided with the tobacco companies on their claim that a ban on mentioning the Food and Drug Administration's regulation of tobacco products is unconstitutional.

Several challenged provisions of the act were upheld by McKinley.

Tobacco companies still will not be able to sponsor athletic, social and cultural events "in the brand name" of a tobacco product.

Under 1998's Tobacco Master Settlement Agreement, crafted by state attorneys general, tobacco companies can have one brand name sponsorship per year.

Also, tobacco companies will not be able to advertise outdoors within 1,000 feet of a school or playground, and warnings that the companies feel are too large will be included on packaging.

Restrictions on handing out free samples and marketing tobacco products with non-tobacco products were upheld, too.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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