## Facts

- Tobacco manufacturers and a retailer brought a facial First Amendment challenge to multiple marketing and labeling provisions of the Family Smoking Prevention and Tobacco Control Act of 2009 (TCA).
- The challenged provisions included large textual and graphic health warnings on cigarette packaging and advertising; limits on free samples, brand-name event sponsorship, branded non-tobacco merchandise, and continuity/loyalty programs; restrictions on color and imagery in certain advertising; and a prohibition on claims implying tobacco products are safer because they are FDA regulated.
- The district court upheld most provisions, but invalidated (1) the broad restriction on color and imagery in tobacco advertising and (2) the prohibition on claims implying safety based on FDA regulation; both sides appealed.
- Congress and the FDA relied on findings regarding tobacco’s serious health consequences, youth addiction risks, and a history of consumer misunderstanding and misleading marketing about tobacco risks.

## Issues

1. Whether the TCA’s combined textual and graphic health-warning requirements are permissible compelled commercial disclosures under the First Amendment.
2. Whether the TCA’s restrictions on free samples, branded non-tobacco merchandise, brand-name event sponsorship, and continuity programs are valid limits on commercial speech.
3. Whether the TCA’s broad restriction on color and imagery in certain tobacco advertising is sufficiently tailored under intermediate scrutiny for commercial speech.
4. Whether the TCA may prohibit claims implying tobacco products are safe or less harmful by virtue of FDA regulation, inspection, or compliance.

## Decision

- The Sixth Circuit largely upheld the TCA’s marketing and labeling scheme under the First Amendment.
- The court upheld the textual and graphic warning requirements as compelled disclosures subject to a deferential standard and reasonably related to preventing consumer deception about tobacco risks.
- The court upheld the restrictions on free samples, branded merchandise, and brand-name event sponsorship as commercial-speech regulations that directly advanced substantial government interests and left adequate alternative channels for lawful marketing to adults.
- The court struck down the broad restriction on color and imagery in tobacco advertising as overbroad and insufficiently tailored.
- The court reversed the district court and upheld the prohibition on claims implying safety or reduced harm based on FDA regulation, treating such claims as inherently or predictably misleading.

## Legal Principles

- Commercial-speech restrictions are evaluated under intermediate scrutiny: the government must show a substantial interest, that the restriction directly advances that interest, and that the regulation is not more extensive than necessary (a reasonable fit).
- Compelled commercial disclosures of factual, noncontroversial information may be upheld under a more deferential standard when reasonably related to preventing consumer deception.
- Government interests in reducing youth tobacco use, reducing tobacco consumption, and preventing consumer deception about tobacco’s health risks are substantial for commercial-speech analysis.
- Broad restrictions that effectively eliminate common, non-misleading advertising features (such as color and imagery) may fail tailoring even when aimed at protecting minors.
- The government may prohibit commercial claims that imply unwarranted safety or reduced harm when those claims are inherently or predictably misleading in context.

## Conclusion

The Sixth Circuit upheld most TCA labeling and marketing provisions, sustaining graphic and textual warnings and several promotional restrictions, but invalidated a sweeping color-and-imagery advertising limit as insufficiently tailored, while also permitting a targeted ban on misleading claims that FDA regulation makes tobacco products safer.


Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012)