Albany Government Law Review

The Family Smoking Prevention and Tobacco Control Act, signed by President Obama on June 22, 2009, grants the FDA the authority to regulate tobacco products, and further requires color graphics depicting the negative health consequences of smoking to be printed on tobacco products. No later than two years after the date of enactment, graphic warning labels were supposed to cover fifty percent of the front and rear of cigarette packaging, and thirty percent of the display panels of smokeless tobacco products. The images eventually developed by the FDA, including a man smoking with a stoma in his neck, a cancerous lesion on a lip, and an image of healthy lungs adjacent to diseased lungs, have yet to appear on tobacco products, as a result of litigation between the federal government and tobacco companies. Part I of this paper will look at the development of commercial free speech case law, highlighting that several federal circuit courts have applied the lower level scrutiny of Zauderer to cases where there is no deceptive advertisement, only a misconception in the market surrounding a product or service. Part II will examine the rulings by the Sixth Circuit and the D.C. Circuit concerning the graphic warning label provision of the Family Smoking Prevention and Tobacco Control Act.