In early 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act to give the Food and Drug Administration authority to regulate tobacco products and to impose certain restrictions on advertising and promotion of tobacco products. On August 31, a group of tobacco companies filed suit to challenge the law, arguing primarily that it imposes restrictions in violation of the First Amendment. The companies moved for a preliminary injunction against enforcement of the provision that requires FDA approval before a company can make claims that a tobacco product poses a reduced risk as compared to other tobacco products. On behalf of 11 non-profit public health organizations and consumer advocacy groups that for decades have worked to educate the public about and protect the public from the devastating health and economic consequences of tobacco use, we filed an amicus curiae memorandum in support of the constitutionality of that provision. Our memorandum explained that the provision is fully consistent with FDA regulation of other products, such as drugs and foods. In addition, the tobacco industry’s documented history of deceit with respect to “light” and “low-tar” cigarettes—which they falsely marketed as healthier than other cigarettes—justifies a pre-approval scheme to protect the public health. On November 5th, the judge issued a decision denying the companies’ motion. The parties then filed cross-motions for summary judgment. We filed a second amicus curiae memorandum to support the FDA’s argument that none of the challenged provisions of the new law run afoul of the First Amendment. The judge held that all but two of the challenged provisions were constitutional.
Both sides appealed. We again represented the public health organizations as amici curiae, arguing that none of the challenegd statutory provisions violates the First Amendment. On March 19, 2012, the court of appeals issued a decision upholding most of the statutory provisions challenged by the tobacco companies. Specifically, ruling in favor of the FDA, the court affirmed the decision of the district court upholding the Act’s restrictions on the marketing of modified-risk tobacco products; bans on event sponsorship, branding nontobacco merchandise, and free sampling; and the requirement that tobacco manufacturers reserve significant packaging space for textual health warnings. With one judge dissenting, the court also affirmed the district court’s decision upholding the constitutionality of the color graphic and non-graphic warning label requirement, with one judge dissenting. The court reversed the district court’s determination that the Act’s restriction on statements regarding the relative safety of tobacco products based on FDA regulation is unconstitutional. Ruling in favor of the tobacco companies, the court of appeals held that the Act’s ban on tobacco continuity programs is not permissible under the First Amendment and affirmed the district court’s grant of summary judgment to the companies on the Act’s restriction of tobacco advertising to black and white text.
The tobacco companies filed a petition for certiorari with the US Supreme Court, asking for review of the court of appeals’ decision. On April 22, 2013, the Supreme Court denied the petition.