Discount Tobacco City & Lottery, Inc. v. United States
2012 U.S. App. LEXIS 5614
| 6th Cir. | 2012Background
- Sixth Circuit reviews district court ruling on FSPTCA First Amendment challenges by tobacco plaintiffs as to advertising/marketing provisions and FDA warnings.
- Act authorizes FDA regulation of tobacco products including modified-risk claims, color graphics on warnings, and bans on samples, sponsorship, and branded non-tobacco merchandise.
- District court upheld warnings (text/non-graphic) and some provisions, struck down/undetermined others; this court affirms in part and reverses in part.
- Plaintiffs contend First Amendment violations; Government defends as public-health measures with substantial evidence of youth impact.
- The opinion analyzes commercial speech standards under Central Hudson and Zauderer, treating disclosures vs. prohibitions differently, and applies constitutional-avoidance in statutory interpretation.
- Judge Clay authors lead opinion with partial dissent; Stranch, joined by Barrett, authors companion sections for portions of Section III (color graphics).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of color graphic warnings | Graphics exceed factual disclosure and overwhelm speech | Graphics address information deficit and are tailored | Color graphics requirement invalidated (Clay dissent) but majority affirms as to graphics overall; for purposes of four other components this is not dispositive. |
| Constitutionality of non-graphic warnings | Warnings are overly burdensome and exceed permissible disclosure | Textual warnings adequately inform under Zauderer | Non-graphic warnings upheld under Zauderer framework. |
| MRTPR pre-market review of modified-risk products | Restricts scientific/policy debate; viewpoint-based | Pre-market review prevents deceptive claims; analyzed under Central Hudson | MRTPR affirmed as constitutional under Central Hudson framework. |
| Marketing bans (sponsorship, samples, continuity, branded merch) and their reach | bans overly broad, suppress protected speech; not narrowly tailored | Regulatory measures directly curb youth use; tailored to youths | Marketing bans largely upheld; continuity programs reversed as not shown to reduce youth use. |
| Restriction on claims that FDA regulation makes tobacco safer (21 U.S.C. §331(tt)(4)) | Section overbreadth; restricts non-commercial speech | Statutory interpretation excludes non-commercial actors; targets deceptive claims | Statutory interpretation supports §331(tt)(4) as constitutional for commercial speech; district court reversed. |
Key Cases Cited
- Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980) (test for regulating truthful commercial speech; requirement of not more extensive than necessary)
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985) (disclosures allowed if reasonably related to preventing deception of consumers)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (states' interests in youth protection; marketing limits reasonable fit)
- Virginia State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (advertising restrictions may be used to prevent deception without banning speech)
- United States v. Philip Morris USA Inc., 566 F.3d 1095 (2009) (evidence of deception in tobacco marketing; informs regulation rationale)