CINCINNATI (Legal Newsline) - A federal appeals court this week upheld a law requiring tobacco companies to display graphic warnings on cigarette packs, saying the warnings are "reasonably related" to the federal government's interest in preventing consumer deception.

On Monday, the U.S. Court of Appeals for the Sixth Circuit affirmed the decision of the U.S. District Court for the Western District of Kentucky at Bowling Green, Ky., deeming the Family Smoking Prevention and Tobacco Control Act's provision requiring the warnings constitutional.

The plaintiffs, tobacco companies Discount Tobacco City and Lottery Inc., Lorillard Tobacco Company, National Tobacco Company LP, R.J. Reynolds Tobacco Company, Commonwealth Brands Inc. and American Snuff Company LLC, appealed the decision of the federal district court.

The court had granted partial summary judgment to the federal government and partial summary judgment on the tobacco companies' claim that certain provisions of the law violate their rights to free speech under the First Amendment.

The federal government filed a cross-appeal.

The Sixth Circuit, in its 84-page ruling, affirmed the decision of the district court upholding the law's restrictions on the marketing of modified-risk tobacco products, bans on event sponsorship, branding non-tobacco merchandise and free sampling, and the requirement that tobacco manufacturers reserve "significant packaging space" for textual health warnings.

The federal appeals court also affirmed the court's grant of summary judgment to the tobacco companies on the law's restriction on tobacco advertising to black and white text, and affirmed the court's decision to uphold the constitutionality of the color graphic and non-graphic warning label requirement.

However, the Sixth Circuit reversed the district court's ruling that the law's restriction on statements regarding the relative safety of tobacco products based on FDA regulation is unconstitutional and its determination that the law's ban on tobacco continuity programs
is permissible under the First Amendment.

"We return to where we began -- the lack of consumer awareness of tobacco's serious health risks resulting from the decades-long deception by tobacco companies," Judge Eric L. Clay wrote for the Sixth Circuit. "Ample evidence establishes that current warnings do not effectively inform consumers of the health risks of tobacco use and that consumers do not understand these risks.

"It is beyond cavil that adolescents are a target of the marketing expertise of tobacco companies, a targeting that exists precisely because of intertwined advantages -- or for the young, disadvantages -- the coupling of immaturity of risk perception with the evidence that the vast majority of regular smokers made the decision to begin smoking as an adolescent."

Clay continued, "It bears emphasizing that the risks here include the undisputed fact that plaintiffs' products literally kill users and, often, members of the families of users: Tobacco products kill up to one-half of the people who use them as they are intended to be used.

"Against this backdrop, the Act requires graphic and textual warnings that convey the factual health risks of smoking to provide consumers with truthful information as they make decisions about purchasing and using tobacco products."

Last month, a federal district court in Washington, D.C., shot down the graphic warning labels, saying they violate the First Amendment.

Judge Richard Leon ruled in favor of five tobacco manufacturers that challenged the labels, which displayed graphic images like diseased lungs and a cadaver bearing chest staples on an autopsy table.

The companies had argued the images were an unconstitutional means of forcing them to distribute the government's anti-smoking message.

A preliminary injunction against the labels had been granted by Leon. In addition, he granted the companies' motion for summary judgment.

"(A)lthough the government contends that it has a compelling interest -- 'conveying to consumers generally and adolescents in particular, the devastating consequences of smoking and nicotine addiction,' -- its 'stated purpose does not seem to comport with the thrust of its arguments, or with the evidence it offers to support the rule,'" Leon wrote.

"To the contrary, it is clear that the government's actual purpose is not to inform or educate, but rather to advocate a change in behavior -- specifically to encourage smoking cessation and to discourage potential new smokers from starting."

The Family Smoking Prevention and Tobacco Control Act gave the federal Food and Drug Administration the authority to regulate the manufacture and sale of tobacco products. After new warning statements were implemented, the FDA proposed nine graphic images.

In addition to the two previously mentioned, images that were included were:

- A man exhaling cigarette smoke through a tracheotomy hole in his throat;

- Cigarette smoke enveloping an infant being kissed by its mother;

- A mouth filled with cancerous lesions;

- A man breathing into an oxygen mask;

- A crying woman; and

- A man wearing a T-shirt with a "no smoking" symbol and the words "I QUIT."

The Sixth Circuit, in its Monday ruling, noted that the D.C. court's opinion addresses issues that were not before it -- namely, the nine proposed images.

However, the federal appeals court said it disagreed with the D.C. court's underlying premise that a disclosure that provokes a "visceral response" or controversy cannot pass muster.

From Legal Newsline: Reach Jessica Karmasek by email at

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