March 23, 2012


Advertising, Packaging Warnings Cleared by Circuit Court

On March 19, the United States Sixth Circuit Court of Appeals largely upheld the constitutionality of provisions of the Tobacco Control Act requiring tobacco companies to place prominent graphic warnings on cigarette packaging and in advertising.  While there are some differences, the ruling in this case, Discount Tobacco City & Lottery v. U.S., is at odds with the recent permanent injunction issued by a U.S. District Judge in R.J. Reynolds v. U.S. which held that the graphic warnings are unconstitutional.  

One aspect of the Discount Tobacco decision was favorable towards commercial speech rights.  It upheld the right of companies to use colors and images in advertising and on packaging, holding that the requirement for only black text on a white background was overbroad and unconstitutional. 

The Discount Tobacco case was much wider in scope than R.J. Reynolds.  It also dealt with provisions of the law restricting such activities as sponsorships, merchandising and sampling.  These restrictions were also largely affirmed by the Court.  The challenge in R.J. Reynoldswas to the specific graphic warnings issued by the Food and Drug Administration.  AAF filed anamicus brief in R.J. Reynolds.

The R.J. Reynolds case will be heard in the Washington appeals court in April.  Should the rulings continue to be in conflict, the issue may finally be settled in the U.S. Supreme Court.

FCC May Require Television Political Ad Records to Go Online

The Federal Communications Commission proposal to would require television stations to put online their political advertising databases online is drawing fire on many fronts.  Broadcasters are already required to maintain public records on political spending on advertising.  They oppose the proposal as unneeded, burdensome, expensive and unfair since it would not apply to other media such as cable.  At a March 19 hearing of the House Appropriations subcommittee on Financial Services and General Government, chair Jo Ann Emerson, R-Mo., questioned why the proposal was a priority given the availability of the information and other important issues before the Commission.  FCC Chairman Julius Genachowski said he would look at public input before voting on the measure.

FCC Forms Task Force to Look at Spectrum Auctions

The Federal Communications Commission has formed a task force to study the issue of spectrum auctions.  Congress recently authorized the FCC to auction unused spectrum belonging to television broadcasters that choose to participate.  Revenues would be split between the stations and government.  The Commission is trying to find ways of making more airwaves available to wireless carriers for the increasing data demands of smartphones and tablets.

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