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Federal judge upholds restrictions on tobacco advertising

[JURIST] A judge in the US District Court for the Western District of Kentucky [official website] on Tuesday upheld [opinion, PDF] the majority of restrictions on cigarette advertising imposed by the Family Smoking Prevention and Tobacco Control Act [text, PDF]. The upheld limitations include a ban on distributing clothing and goods with logos or brand names affixed, as well as sponsorship of cultural, athletic, and social events. In finding that these restrictions did not violate the First Amendment, Judge Joseph McKinley wrote, "the Act's ban on free samples clearly regulates the distribution of a product, not speech—and, even if thought of as a speech restriction, it would seem fully permissible as a restriction on price, i.e., tobacco products cannot be free." McKinley did permit the continued use of color and graphics in tobacco advertisements and labels, striking down those portions of the law by quoting the Supreme Court's language from Central Hudson Gas & Electric v. Public Service Commission [opinion text], "The State cannot regulate speech that poses no danger to the asserted state interest ... nor can it completely suppress information when narrower restrictions on expression would serve its interest as well." The ruling was seen as a victory for anti-smoking groups such as the Campaign for Tobacco-Free Kids [advocacy website], which called the decision [press release], "a significant victory for public health." The tobacco companies involved in the suit, including RJ Reynolds [corporate website], have not released statements on the decision.

Judge McKinley's decision comes only four months after the suit was filed [JURIST report] claiming the new tobacco law violated the First Amendment. Obama signed the bill into law [JURIST report] in June 2009, the culmination of many years of debate on the merits and authority of the Food and Drug Administration to oversee the tobacco industry. The bill was first voted out of committee [JURIST report] in the House in April 2008, while a Senate committee approved a version of the bill [JURIST report] in August 2007.

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