Litigation Surrounding the Family Smoking Prevention and Tobacco Control Act

April 10, 2010

In the 1950s, scientific studies by the American Cancer Society and others established a definitive link between tobacco use and cancer. After the US Surgeon General issued a report in 1964, the Federal Trade Commission (FTC) promulgated the first regulations requiring cigarette packs to display warnings relating to health. With few changes, those warnings remain in place today. However, once scientific data began to emerge about the addictive nature of nicotine in the 1990s, the Food and Drug Administration (FDA) asserted jurisdiction over the products in 1996 in order to regulate their marketing and content. Its original regulations included stringent restrictions on marketing and advertising. The tobacco industry sued the FDA, claiming that it had exceeded its authority under the Food, Drug, and Cosmetic Act (FDCA) in the case of FDA v. Brown & Williamson Tobacco Corp. The case went all the way to the US Supreme Court in 2000, which held in a 5-4 decision that the agency did not have the authority to issue such regulations unless the FDCA was amended.

Eight years of legislative work by public health advocates finally succeeded in 2009, when Congress passed and President Obama signed the FSPTCA. FSPTCA amends the FDCA to delegate jurisdiction over the manufacturing, marketing, and distribution of tobacco products to the FDA and requires that the FDA reissue the 1996 regulations struck down in Brown & Williamson with some limited modifications. Of primary import to the litigation surrounding it, FSPTCA limits the advertising, marketing, and the promotion of tobacco products in ways that attract young people to start using the products. FSPTCA also provides that the FDA should make any modifications that are necessary with respect to the First Amendment right to commercial speech in light of the US Supreme Court's decision in Lorillard Tobacco Company v. Reilly.

Reilly was considered by the US Supreme Court in 2001, and the First Amendment decision in that case remains in effect today. In 1999, the Attorney General of Massachusetts issued regulations that banned tobacco advertisements and the sale of cigarettes, smokeless tobacco, and cigars within 1,000 feet of schools and playgrounds. In response, tobacco manufacturers and retailers sued, claiming that the regulations were preempted by federal law and an infringement of their First Amendment right to commercial speech. In Reilly, the Supreme Court first determined that the Attorney General's regulations targeting cigarettes, but not smokeless tobacco or cigars, were pre-empted by federal law. It also determined that the 1,000-foot advertising ban infringed on the tobacco defendants‰Ûª First Amendment right to commercial speech. The Supreme Court applied the following four-part test, in which all four conditions must be met for the restrictions to be upheld: (1) whether the expression is protected by the First Amendment; (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the governmental interest asserted, and (4) whether it is not more extensive than is necessary to serve that interest. The Supreme Court analyzed each prong in turn, finding that the first three elements of the test were satisfied but the fourth was not, holding that the 1,000-foot restriction was overly broad and unduly burdensome on the tobacco industry‰Ûªs right to free speech. According to the majority, the regulation was not sufficiently tailored to its purpose, and was as a result more extensive than necessary to serve the public‰Ûªs interest in preventing underage tobacco use.

As a result of the Lorillard decision, at least 20 cities and states repealed their own tobacco regulations. The Lorillard decision continues to hamper the breadth of advertising and marketing regulations today.