Several tobacco product manufacturers and a retailer recently requested that the United States Supreme Court consider their challenge to FDA’s requirement for graphic warning labels on cigarette packages. The tobacco companies are requesting that the Supreme Court reverse the Sixth Circuit Court of Appeals’ decision finding that the warning label requirement does not violate the First Amendment of the United States Constitution.
This request for Supreme Court review comes on the heels of FDA’s request for rehearing of the D.C. Circuit Appeals’ decision finding that the graphic warning label requirement was unconstitutional. The D.C. Circuit Court case involved a slightly different issue, as that case involved an applied challenge to the warning labels (that is, after FDA determined the labels’ content), whereas the Sixth Circuit case involved a facial challenge to the warning label requirement (that is, before FDA determined the labels’ content).
When federal courts of appeals render different decisions on a same or similar issue, it heightens the likelihood of Supreme Court review. (The Supreme Court has discretion whether to hear a case, and the Court hears a very small fraction of the requested appeals.) Also increasing the chances of Supreme Court review are the fact that the matter involves an issue of nationwide significance, as well as a constitutional challenge to a federal law.
The plaintiff-tobacco companies have requested that the Supreme Court defer consideration of their warning label challenge pending the D.C. Circuit Court of Appeals’ decision on FDA’s request for rehearing. If, as expected, the D.C. Circuit denies the request for rehearing, the plantiff-tobacco companies have requested that the Supreme Court consolidate the parties’ arguments for consideration. If the D.C. Circuit grants the request for rehearing, the plaintiff-tobacco companies will submit supplemental briefing.
The plaintiff-tobacco companies also have asked the Supreme Court to review : (1) the Tobacco Control Act’s prohibition on tobacco companies from conveying truthful information, without FDA pre-approval, regarding the relative risk of tobacco products, which the plaintiffs contend is an unconstitutional prior restraint against free speech, and (2) the Tobacco Control Act’s prohibitions on brand name sponsorships, brand name non-tobacco merchandise and tobacco sampling, which the plaintiffs contend are overly broad in relation to the government’s desire to reduce youth smoking.