There was a huge backlash from tobacco industries in response, alleging that the challenged provisions of the FSPTCA violated their free speech rights under the First Amendment.
Circuit published seemingly disparate opinions on the constitutionality of the FSPTCA. (96) Only five months after the Sixth Circuit upheld the measure in Discount Tobacco City & Lottery, the D.C.
Both cases discussed above devoted considerable attention to which level of scrutiny is appropriate in dealing with FSPTCA. This is because the standard of review applied is crucial to the outcome, as was true in both cases.
The government can seek to compel normative speech in very narrow circumstances, and FSPTCA would squarely fall within that narrow scope.
In the U.S., if a new bill was in the making, the government should prepare to overcome the Central Hudson standard, in case it fails to persuade the court that the new FSPTCA should only be subjected to the rational basis test.
*** Tobacco-brand sponsorship prohibited under the FSPTCA
distinguishes tobacco brand name from the corporate name.
These rules also would subject e-cigs to the 2009 FSPTCA
's potentially stringent premarket review requirements.
Second, the recently-passed FSPTCA
should remind Congress that it does not have to let government agency failures or pressure from large companies dictate the nation's health policies.
The FDA implemented the mandates of the FSPTCA and promulgated a rule that made it "unlawful for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the United States any cigarettes the package of which fails to bear ...
The FDA's graphic warnings departed from the previous text-only warnings of [section] 1333 by adding images to accompany the textual content, as required by the FSPTCA. This change--from text-only warnings to text-and-image warnings--led tobacco companies to oppose vigorously the disclosure requirement.
That same year, Congress passed the FSPTCA. (70) Three years after President Obama signed the bill into law, the Sixth Circuit considered a facial challenge to the graphic warnings provisions in the Act.
In this instance, Congress directly stated its intent to educate the public through the FSPTCA's measures.