Tobacco Cos. Ask Supreme Court to Review Graphic Labels Ruling

MINNEAPOLIS -- The battle over graphic cigarette warning labels is being fought on another front now that several tobacco companies as well as a member of the National Association of Tobacco Outlets (NATO) have filed a Petition for a Writ of Certiorari with the U.S. Supreme Court asking the court to review a March decision by the U.S. Circuit Court of Appeals for the Sixth Circuit. That decision upheld the constitutionality of the Food and Drug Administration (FDA) warnings.

In June 2011, the FDA revealed the warnings -- a combination of text and graphic images -- and issued a mandate that they appear on all cigarette packaging and advertising by Sept. 21, 2012. The mandate immediately drew legal challenges, as CSNews Online previously reported.

The March ruling, which came in the case of Discount Tobacco City & Lottery Inc. v. U.S., 10-5234 and 10-5235, U.S. 6th Circuit Court of Appeals, also upheld the FDA's ban on the marketing of cigarette and smokeless tobacco products through brand-name sponsorships, brand-name merchandise, free samples of these products, and free gifts with the purchase of these tobacco products, according to a release on NATO's website.

The parties filing the petition with the U.S. Supreme Court are American Snuff Com.; Commonwealth Brands  Inc. (now Commonwealth-Altadis Inc.); Discount Tobacco City & Lottery Inc.; Lorillard Tobacco Co.; National Tobacco Co.; and R.J. Reynolds Tobacco Co.

 Under U.S. Supreme Court rules, the Supreme Court has the discretion to either agree to hear an appeal of a court decision or deny the petition to hear the case. While thousands of Petitions for a Writ of Certiorari are filed with Supreme Court each year, only about one hundred petitions are granted, NATO added.

In the petition, the parties argue that the country's highest court should accept the petition for review because it deals with First Amendment issues. According to the release, the First Amendment protects free speech, including commercial speech in the form of advertising, and the new FDA warning labels only repeat "well-known information about the product, and, at worst, convey the unmistakable message not to buy the product." Also, the First Amendment does not allow a blanket ban on commercial marketing to adults, but the FDA rule prohibits the use of brand names, sampling, and giving free gifts in a "simplistic effort to shield youth from speech about age-restricted products."

The parties also point to an August 2-to-1 decision by the U.S. Court of Appeals in Washington, D.C., which affirmed a lower court ruling that the nine graphic cigarette warning labels requirement violated the First Amendment's free speech protections. The appeals court tossed out the requirement and told the FDA to go back to the drawing board. The U.S. Justice Department filed a petition on Oct. 9, asking the full court to rehear the case.

The FDA has until Nov. 26th to file a response to this Petition for a Writ of Certiorari.