Color My World – A Cigarette Advertising Decision

A federal trial court in Kentucky issued a “split the baby” decision in a case concerning cigarette advertising, according to a story in today’s New York Times. The court upheld the government’s power to require cigarette makers to include graphic warning labels on cigarette packages. But the court struck down an FDA provision that required virtually all cigarette advertising to be limited to black text on a white background. The court agreed with the cigarette makers that “simple brand symbols” and “some uses of color” “communicate important commercial information about their products, i.e., what the product is and who makes it.” In the court’s mind, that restriction went beyond what was necessary to achieve the government interest – limiting appeals to minors. Because of that overbreadth, the regulation offended the First Amendment. Even commercial speech gets some First Amendment protection. It’s anticipated that the case will work its way up to the Sixth Circuit Court of Appeals and potentially to the Supreme Court.