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Court upholds/strikes tobacco act provisions

This article was originally published in The Tan Sheet

Executive Summary

A federal court in Kentucky upholds most of and strikes two provisions of the Family Smoking Prevention and Tobacco Control Act that tobacco firms challenged, in a Jan. 5 decision (1"The Tan Sheet" June 15, 2009). In U.S. District Court for the Western District of Kentucky, Judge Joseph McKinley Jr. agreed that a provision in the act that requires tobacco product labeling and ads for cigarettes or smokeless tobacco appear in only black and white violates First Amendment rights. The judge also declared unconstitutional a provision banning firms, journalists, scientists, politicians and others from stating that "the product is safe or less harmful" because it is an FDA-regulated product. McKinley left undecided a provision that bans outdoor advertising within 1,000 feet of a playground, elementary or middle school or public park because FDA must issue a final regulation explaining how it will enforce the ban before it can go into effect and the court will wait for its issuance. David Clissold, an attorney with Washington-based Hyman, Phelps & McNamara, stated in a Jan. 6 FDA Law Blog post, "Aside from any appeal in this case, the next significant challenge is likely to be whether FDA's regulation to control outdoor advertising passes constitutional muster.

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