Court ruling on Cigarettes

[sherid]

Ban on Color and Graphics in tobacco Ads Thrown Out (Update2)
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By Bob Van Voris

Jan. 5 (Bloomberg)-- A federal judge in Kentucky ruled that a new federal law giving the U.S. Food and Drug Administration jurisdiction over tobacco can’t prevent companies from using color and graphics to advertise their products.

U.S. District Judge Joseph H. McKinley Jr. ruled that provisions of the Family Smoking Prevention and tobacco Control Act, signed into law by President Obama in June, violate the free-speech rights of advertisers.

McKinley, whose court is in Bowling Green, agreed with Reynolds American Inc.’s R.J. Reynolds Tobacco Co. and other companies that challenged the law,“that images of packages of their products, simple brand symbols, and some uses of color communicate important commercial information about their products.”

McKinley, whose opinion was released publicly today, also blocked a provision barring statements that tobacco products are less harmful because they are regulated by the FDA or comply with agency requirements. The judge declined cigarette makers’ request to strike down other provisions in the law.

Biggest Issue

“We are certainly pleased with the judge’s decision in finding that certain provisions of the law are unconstitutional, including what we believe was one of the biggest issues in the case -- use of color and imagery in our advertising,” R.J. Reynolds spokesman David Howard said in an e-mailed statement.
Ban on Color and Graphics in Tobacco Ads Thrown Out (Update2) - Bloomberg.com

 

[TropicalBob]

Very good news. The zealots can follow their rigid political agenda right up to the point where constitutional rights are infringed. There is no "right to vape". Or even "right to smoke". But there is a right of free speech spelled out in the Constitution, and no amount of political correctness should ever be allowed to erode that most important right.

If the product is legal, as cigarettes are, it should have the same advertising considerations as all other legal products. I'm glad eager activists had their folly turned down. Now, let's hope that court decision withstands all appeals.

 

[VapingRulz]

There is no "right to vape". Or even "right to smoke".

In the absence of clear anti-vaping laws, there most certainly IS a "right to vape" right now. There is also a "right to smoke" because smoking is legal.

Or am I misunderstanding? Do you mean that there's no automatic right to vape or smoke in certain areas?

 

[TropicalBob]

Rights are guaranteed under the Constitution. Privileges are granted. Free speech is a right. Smoking is a privilege, as is vaping. If a property owner says no, you cannot cite the Constitution as a protector of your personal desire to engage in an activity.

Not splitting hairs at all, but there is a big difference between what we choose to do and what we have every right to do.

This case centered on infringement of a constitutionally protected right.

 

[boondongle]

Very good news. The zealots can follow their rigid political agenda right up to the point where constitutional rights are infringed. There is no "right to vape". Or even "right to smoke". But there is a right of free speech spelled out in the Constitution, and no amount of political correctness should ever be allowed to erode that most important right.

If the product is legal, as cigarettes are, it should have the same advertising considerations as all other legal products. I'm glad eager activists had their folly turned down. Now, let's hope that court decision withstands all appeals.

But there's already a precedent for this -- cigarettes can't advertise on television or radio. Not sure how that factors in, but I thought I'd toss it out there.

 

[jlmanno]

kind of lost here, does this have any effect on our privilege to vape?

 

[sherid]

kind of lost here, does this have any effect on our privilege to vape?

Like it or not, the privilege to smoke and the privilege of vaping are the same.

 

[68stang]

feds shouldn't be involved any way. the constitution says things not talked about in the constitution itself should be taken care of on the state level. but who cares about our constitution any more

 

[chrisl317]

But there's already a precedent for this -- cigarettes can't advertise on television or radio. Not sure how that factors in, but I thought I'd toss it out there.

For the longest time neither could companies that sold hard liquor. Now watch your tv and see the commercials. The reason that cigs aren't advertised is that the tobacco companies long ago gave away the ability to advertise on TV and Radio during what I call "The Tobacco Wars".

 

[ChipCurtis]

I fail to see how this is supposed to be exciting news to the vaping community. A legal ruling that (for now) gives BT the right to advertise in color? Could somebody here please enlighten me as to what the connection is with vaping?

 

[TropicalBob]

Sherid has postulated that e-smoking could follow the same restrictive path cigarettes have followed: Can't use publicly. Regulated. Excessively taxed. Users made pariahs. A disinformation campaign to paint e-smoking as a socially unacceptable practice for nicotine addicts who should quit or die.

That's why what happens in restricting legal tobacco sales has importance to us, even if we no longer smoke cigarettes. Get it now? I think Sherry is right and today's events are proving it.

 

[Drozd]

I fail to see how this is supposed to be exciting news to the vaping community. A legal ruling that (for now) gives BT the right to advertise in color? Could somebody here please enlighten me as to what the connection is with vaping?

It rules parts of the Family Smoking Prevention and Tobacco Control Act as unconstitutional and weakens the jurisdiction of the FDA over tobacco..
Since the wmoking everywhere and njoy vs FDA case is basically a does the e-cig classify as a tobacco product (SE and Njoy's stance) or a combination drug delivery device, it could have implications.

 

[Bill Godshall]

Judge McKinley's decision is at http://www.tobaccofreekids.org/pressoffice/district_court_opinion_01052010.pdf

As one who first exposed (back in 2004) that the negotiated FDA tobacco legislation deal between Philip Morris and CTFK's Matt Myers would allow cigarette companies to truthfully claim that their products are approved by the FDA (which resulted in Myers, Kennedy & Waxman changing the legislation to prohibit tobaccco companies from making these claims), I wasn't surprised that Judge McKinley's decision upheld that type of truthful claim to be protected by the Constitution.

But it was disappointing that McKinley upheld all of the new law's Modified Risk Tobacco Product (MRTP) provisions. Had McKinley reviewed the scientific evidence on the health risks of different tobacco products, I doubt he would have written the paragraph on (page 32) referring to claims that smokeless tobacco products are less hazardous than cigarettes as "untested claims". McKinley's ruling on the MRTP provisions also didn't seem to recognize that many MRTP product claim applications will involve smokeless tobacco products that are already on the market.

As the one who urged Sen. Enzi to propose the amendment (in 2007) to require large color graphic warnings on cigarette packs (which was opposed by CTFK, ACS, AHA, ALA), I was especially pleased that provision was upheld.

Regardless, future rulings by Appeals and Supreme Courts on this case also are likely to uphold and reject various provisions of the law, but could reverse and/or modify some of McKinley's rulings. I think (and hope) these future court rulings will deal in far greater detail with the MRTP provisions (than McKinley's ruling did).

 

[Chefdeuce]

That is great news!
I don't support big tobacco anymore, but alot of people seem to think vaping is the same thing. So until they become more educated a win for them is a win for us.

 

[clear_blue27]

Edit:
I am confused. Does this mean that ecigs are fda approved?

 

[Sun Vaporer]

Edit:
I am confused. Does this mean that ecigs are fda approved?

No--Not at all and that is why I am changing the title of this thread.


Thanks,

Sun

 

[ChipCurtis]

It rules parts of the Family Smoking Prevention and Tobacco Control Act as unconstitutional and weakens the jurisdiction of the FDA over tobacco..
Since the wmoking everywhere and njoy vs FDA case is basically a does the e-cig classify as a tobacco product (SE and Njoy's stance) or a combination drug delivery device, it could have implications.

But this is such a specific ruling which does not call into question any other aspect of FDA's authority over tobacco products. It's like saying that our chances of driving hybrid or full-electric cars increases just because a judge ruled that General Motors can't advertise their standard gasoline-based cars in color ads.

 

[68stang]

i guess anything that beats the fda at this point is good

 

[Drozd]

But this is such a specific ruling which does not call into question any other aspect of FDA's authority over tobacco products. It's like saying that our chances of driving hybrid or full-electric cars increases just because a judge ruled that General Motors can't advertise their standard gasoline-based cars in color ads.

I see it more as that the FDA cannot run with whatever they want unchecked and more so that a court ruled against this particular "federal" agency

 

[Territoo]

Somebody tell me if I'm on the right track or not. The ruling indicates that parts of the ACT are unconstitutuional as it violates Free Speech. That means that it wasn't just the FDA that was struck down, but actually parts of the ACT as written by Congress and signed by Obama (hisssssss), correct? If that is the case, then the fact that the ACT is partially unconstitutional weakens it. Not as good a scenario as if the whole ACT was declared unconstitutional, but we gotta take what we can get.