WASHINGTON - Yesterday the U.S. Court of Appeals for the Sixth Circuit issued its opinion on an appeal of a case brought by tobacco manufacturers against several regulations promulgated by the Food and Drug Administration.

Importantly, the Sixth Circuit disagreed with the U.S. District Court for the District of Columbia and upheld the constitutionality of FDA??s requirement for graphic warning labels on cigarette packages. But the court struck down FDA??s ban on the use of color in tobacco advertisements. NACS submitted a brief on that one question, urging the court to strike the provision ?" the court agreed that such a broad ban violated the First Amendment.

The case also included challenges to FDA??s ban on the use of tobacco brand names in event sponsorships and on non-tobacco products, bans on continuity programs, limitations on claims about modified risk tobacco products, and prohibitions on claims that tobacco products are safer because they comply with FDA regulation. The court upheld all of these restrictions except that it struck down the ban on continuity programs, holding that the FDA did not have sufficient evidence to support that restriction.

In light of the differences between the court??s decision and that of the U.S. District Court for the District of Columbia, it would not be surprising for the parties to seek review of the case by the U.S. Supreme Court. As a result, it is likely to be some time before these questions are fully settled.