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Judge Lifts Some Tobacco Ad Limits

A federal judge in Kentucky issued a mixed ruling Tuesday in the first significant legal challenge to the new federal law regulating tobacco products.

Judge Joseph H. McKinley Jr., ruled that companies could be forced to put new, graphic warning labels covering the top half of cigarette packages by 2013. But he ruled they could not be forced to limit their marketing materials to only black text on a white background, saying that was too broad an intrusion on commercial free speech.

In a 47-page ruling in Federal District Court in Bowling Green, Ky., the judge upheld the broad authority of the Food and Drug Administration to restrict tobacco marketing and affirmed federal, state, local and tribal authority to impose additional restrictions.

The case is likely to be appealed to the Sixth Circuit Court of Appeals and the Supreme Court, lawyers on both sides say.

The Campaign for Tobacco-Free Kids, a Washington advocacy group that promoted the landmark regulatory legislation that passed last year, praised the judge’s action as a victory to protect children and public health.

“This clears the path for the F.D.A. to move forward on a broad range of marketing restrictions,” Matthew L. Myers, president of the group, said in an interview.

The ruling also upheld a ban on forms of tobacco marketing that might appeal to youth, including brand-name sponsorships of events like car racing or rodeos, merchandise like caps, T-shirts and sporting goods.

But David P. Howard, spokesman for R. J. Reynolds Tobacco in Winston-Salem, N.C., emphasized the part of the decision favoring tobacco makers.

“Certainly we’re pleased with the judge’s decision in finding that certain provisions of the law are unconstitutional, including what we think was one of the biggest issues of the case, that being the use of color and imagery in our advertising,” Mr. Howard said.

As written, the law would limit advertising to black text with no graphics except in magazines with few young readers or in retail establishments open only to adults. Arguing in favor of that restriction, the government had asserted that companies were using light colors and appealing imagery as substitutes for their misleading use of the terms “light” and “low tar,” which will be banned in June. The judge ruled that companies could use imagery and colors appropriately to communicate “what the product is and who makes it.” He dismissed government objections that such marketing tailored to adults would unduly influence children.

If that part of the ruling is upheld, Reynolds could continue using a colored drawing of a camel to promote Camel cigarettes, and Lorillard could continue promoting the aqua color associated with Newport, the leading menthol brand, company spokesmen said.

“We are gratified that the court upheld our free speech rights to use color and graphics in our advertising to communicate with our adult consumers,” said Michael W. Robinson, a Lorillard spokesman.

Nancy Brown, chief executive of the American Heart Association, said, “Slick graphics, colors and false claims of product safety will not disguise the fact that tobacco is a danger to smokers and nonsmokers alike.”

The judge upheld the marketing section of the new law likely to be noticed by consumers — a requirement, modeled on one in Canada, for cigarette packs to contain color graphics depicting the negative health consequences of smoking, like photographs of diseased people.

The companies had argued that such images were unnecessary because both adults and young people were already fully informed of the health risks and actually overestimated them.

But Judge McKinley wrote that consumers have come to ignore the smaller health warnings on cigarette packs.

“The government’s goal is not to stigmatize the use of tobacco products on the industry’s dime,” he wrote. “It is to ensure that the health risk message is actually seen by consumers in the first instance.”

 

Duff Wilson, The New York Times. January 5, 2010

Copyright © 2010 The New York Times Company. All rights reserved.