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Judge Throws Out Provisions Of Tobacco Act He Says Violate Free Speech

January 15, 2010 by  

Judge throws out provisions of tobacco act he says violate free speechU.S. District Judge Joseph H. McKinley Jr. last week upheld the provisions of The Family Smoking Prevention and Tobacco Control Act which limit the marketing of cigarettes through sponsorships and on merchandise. However, he overturned some parts of it saying they violated tobacco companies’ free speech rights.

Under the act, tobacco companies will be required to use large health warnings on cigarette packs, and will no longer be allowed to market tobacco to children, engage in brand name sponsorships, sell tobacco-branded merchandise, give free samples of tobacco products and free gifts with purchase.

However, advocacy organizations such as Campaign for Tobacco-Free Kids are critical of the judge’s decision to overturn the ban on color and graphics in most tobacco advertising.

"[This] provision is constitutional because it serves the compelling government interest of discouraging tobacco use by children and is narrowly tailored to serve that interest," the organization said in statement.

It added, "We believe that the judge’s conclusions on these two provisions are based on a misinterpretation of the law and strongly urge the government to appeal."

Meanwhile, David Howard, spokesman for R.J. Reynolds, maker of Camel cigarettes, said the company was "pleased" with that part of the ruling. R.J. Reynolds, along with Lorillard, which sells Newport menthols, and several other tobacco makers sued in August to block the restrictions.

The companies are considering whether they will appeal the parts of the law the judge upheld.

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  • James

    A U.S. District Court held a federal law to be in violation of the First Amendment’s “Congress shall make no law…abridging the freedom of speech.” Great! That’s to whom it applies!

  • http://n/a Mark

    I am not a tobacco user. But … it seems to me that we should simply be educating smokers and potential smokers to the dangers of smoking. NOT communistically controlling those people who choose to smoke by over taxing them. That is pure communism. Let them make their own decision, they are the ones having to live with it. Who are WE to say you can’t smoke, WHO is this gov’t to tell the people they can’t smoke. It is the right of the people to choose what they want, not be controlled by a communist gov’t such as ours, or a bunch of arrogant aholes that want to push their beliefs on the people.

    • Disgusted

      You are so right. If they want to smoke; let them smoke. Why would it be the governments responsibility to tell people they can or can’t smoke?
      The thing that makes me most angry about it is that we all end up paying higher health premiums because of those morons that still choose to light up even though they know the health risks. I say the insurance companies should hike their rates up to an astronomical amount due to the health risks inherent with smoking.
      It is the tobacco companies right to advertise their product even though it is bad for your health. Look at all the drug advertisements on TV; they have side effects that are in some cases worse than the actual health issue that is being treated, but as long as they state the health risks involved they are allowed to advertise any way they want… should be the same for the tobacco companies.
      Once the government has this kind of control what is next?
      We are headed for a communist gov’t!

      • Kermit Rose

        Hello. What both of you have overlooked is that there is a justifiable reason for restricting where people may smoke. The smoke of the cigarette harms everyone near the person who smokes.

        Since tobacco use is addictive, any practical means of preventing people from starting to smoke is justified.

        I agree that we should never force people to quit their self destructive habits, but every means of persuasion should be tried.

        Kermit Rose

        • coal miner


          Lenin of Russia order everyone out of the meeting who was smoking because he didn’t smoke and not smoke in his presence again.Rights are easy to lose and extremely hard to regain. Hear are some violations of our rights .

          1:Forced seat Belts on all occupants
          2:No Smoking on your own property(inside and outside of your home)
          3:Politically correct
          4:No deadly traps inside your home for trapping criminals while away(you can be prosecuted and sued)
          5: pit bulls(no pit bulls allowed,even in you own home)
          6:No guns( New York City and Chicago even in your own home)
          7: No Cigarette advertisements(magazines,television or billboards)

          Our president Thomas Jefferson once said,”To sacrifice freedom for safety sake,you will wind up losing both of them”

          • Joe H.

            coal minor,
            mind telling us where it says you can’t smoke in your own home????

          • coal miner


            It was on the news last year.A woman bought a home,I think it was in NewJersey.It was one of those adjoining strutured homes.The co-op who run these condo type structured houses passed a ordinance no one can smoked even in there own back yard.Some people starting complaining about a neighbor smoking,she refused to stop smoking when ordered.She was forced to put her home up for sale.I think it was in Boston,You can’t have your clothes out on a line,because people’s under clothes were offensive to some people. You can ask DaveH about this.

          • coal miner


            I meant their own backyard.

          • Joe H.

            That is still being contested in court!!!

          • DaveH

            I’m ambivalent about this subject, as I can see both sides of the issue. However, I believe Social Pressure is the answer rather than Government Meddling. Here is an article that discusses the smoking ban problem from a Libertarian point of view:

        • http://Yahoo Dee D

          Kermit – When are people going to wake up? Tobacco in a pure form is addictive but not necessarily a killer. Man made progress is the culprit. Poisons into the soil to increase production, additives to enhance flavor and make them more addictive. Additives to add shelf life for bigger profits. Man has a habit of stepping backward to achieve going forward. They don’t give two hoots what anything they do to your body as long as their profit portfolio grows bigger. And we allow them to play their their game. We are the enablers.

      • Smoker

        I agreed with almost everything you said til you called smokers morons. That was unnecessary since I wouldn’t call you names for doing something I don’t like. As for healthcare expenses, I’ve been around a heck of a lot of smokers in my life and none have had the problems you think are attributable to to the raise in costs including the six past generations of smokers in my family we have records on. The irony is that had the massive raise in tobacco prices last year gone to pay for these alleged health costs as it should have, you’d have nothing to complain about. Instead, they chose to use it to pay for children that the smokers don’t even have nationwide. Now, that may be a good thing, but you can blame the gov’t for doing that instead of using it towards keeping your premiums down and taking care of smoking related issues like it should have. That was up to them and not smokers and we sure resent paying more while having our rights taken away and being forced to pay for others healthcare instead of our own at the same time. The majority of us don’t mind being limited to smoking areas but we resent being accosted and harassed in them by nonsmokers and we resent not having an area indoors to smoke in inclement weather. Even a small enclosed shelter would be better than nothing but we can’t even have that because some nonsmoker might ignorantly wander in and be exposed. Pretty sad that your rights get priority over ours when all you’d have to do is stay out of a few limited smoking areas to protect yourself isn’t it?

        • titan

          The thing about the smoking areas is…….the nonsmokers follow you there. They won’t go to their areas, they like to hang out with smokers, then complain about the smoking? What’s up with that? Another thing that will eventually come out…tobacco is not killing as many people as said. All cancers eventually hit the lungs. Many people don’t even know about cancer until it hits the lungs. The questions they ask come down to “have you ever smelled tobacco smoke in your lifetime”, then that’s what caused it. They don’t have a clue when they come up with those kind of answers. New information is coming out that is proving other things are causing lung cancer besides tobacco, many more things. After all, tobacco comes from the earth and is organic. It was used as medicine not too many years ago and still has health benefits Dr’s aren’t allowed to talk about. Colon cancer being a cancer prevented by tobacco, among others. They try to blame second hand smoke on everything, so what about second hand air, pollutants. I have a friend who never smoked, lived with a smoker, not in a business around smokers, and they tried to get her to say she had been around ANYBODY who smoked. She honestly couldn’t. She’s taken chemotherapy that has ravaged her body. According to the more progressive dr’s, the time is coming that chemotherapy will be held as the same medicine as “blood letting” was in the middle ages. Chemotherapy is big business. They don’t want cancer cured, but the more alternative drs are curing it. Just look it up. It’s happening and happening without chemotherapy or radiation. It’s not all about tobacco, salt, or overweight. It’s something else. Read all about it, but I don’t think I can say where, but you’ll find it.

          • Joe H.

            It has, in my opinion, to do with genetics. My father smoked for about 45 years and died at 89 years old of prostate cancer. His lings were clear to the day he died!!!! I smoked for about 30 to 35 years and quit ten years ago and My lungs are, according to my DR, like those of a 30 year old!!! I’m 59! My uncle on my mothers side died at 45 of lung cancer and never smoked a day in his life!

      • Robert

        Hey disgusted. I agree with you 100%. Obama’s a moron. He smokes doesn’t he? Grounds for impeachment or removal from office. We can’t have a moron as President of the USA, can we now?

      • BOE

        Honey..if you think smoking is really need to look at alcohol and the collateral damage from drinking. Not just the drunk driving problems but spousal and child abuse. Heavy drinkers start having medical problems in the 30`s and 40`s with liver and pancreas problem,frequent hospitalizations,job losses,financial problems and broken families. Smokers if considerate of others just hurt themselves and at least can drive a car,go to work every day and pay their on way. Alcoholics can`t keep a job(not all but most). Why do you think we have so many street homeless people.

        • Meteorlady

          Oh but many many congressmen are drunks. Even past congressional representatives. Senator Warren Magnuson from Washington State (way back) was so drunk most of the time that his staffers had to hold him up for votes. Ted Kennedy killed someone while drunk and had a hugh drinking problem. The list goes on, but I won’t get into that. You are right – alcohol is a bad thing for some people. For others like me, it’s a social thing on weekends some of the time. As for smoking my mother is in a wheel chair because of stoke caused smoking and has mild emphysema. But she is 92 and still alive.

      • macatac

        I find grand humor in your diatribe on how I should pay more because I smoke. 50 years now, I have smoked 11/2 packs a day or more. I have had no medical problems, and there is no indication that I will. I have not led a sedentery lifestyle, either. I agree with the premise of pay according to your actions WHEN it fits, I.e. The diabetic who refuses to reign in the sugar intake, totally irresponsible action. I am 60, with no indication of any kind of adverse affects from smoking. Why should I pay more? But the morons who refuse to take their illness serious, can get cheaper healthcare than I? I still only take off wor sick 1 or 2 days a week.

    • http://Don'thaveone Sally

      You are absolutely right my friend. It wasn’t that they were against smokers as are all of the laws lately, it was just a means to collect more taxes – supposidly to pay the additional medical bills of lung cancer or some other stupidity. I have known many people that did not smoke, were no around second hand smoke that had cancer of the lungs – doesn’t have anything to do with it. Again control, who knows btter than the FEDs what is right for you — meanwhile Obummer runs around the white house smoking!!! I wonder if Clinton ever smoked any of those cigars he was famous for using?

      • Robert

        You’ll have to ask Monica.

  • Earl, QUEENS, NY

    Remember all the attacks on Camel Joe?? Well, if you don’t like him, don’t look at him!! What about the 1st Amendment?? And if the leftists hated him so much, why didn’t they just change him and make him politically correct? That is – take the cigarettes out, and make a textbook “Camel Joe has 2 Daddies” or “Camel Heather has 2 Mommies”.

    Also, we’ve been hearing about a new ban on flavored tobacco here in New York next month. A goofy woman said it’s a message to the tobacco industry to protect kids. BS!! Why do we need bans? We have existing laws to keep kids under 18 from tobacco use. And today, it seems kids get more severe punishment for smoking than robbing or bullying other kids. It should be obvious by now that liberal statists think we’re all kids who need a nanny gov’t to run our lives!!

  • http://Don'thaveone Sally

    What about alcohol drinkers???? They cause costly and dealdy accidents, horrendous medical bills?? What about people with HIV? Did you all know that Obama has lifted the restriction that you can now come into our country if you are HIV positive. You aren’t even allowed to test those people – they just keep right on passing it around and you talk about high hospital bills – give me a break!! Back in the 50′s and earlier, if you were handling food especially, you hade to have a TB test and if you tested positive – Whoooo off to the TB sanitarium you went until you were no contageous. AND THAT WAS A CURABLE DISEASE!!!! I guess since you couldn’t catch it mainly by sexual proceedings, that is the reason it was a disgrace.

    • jim

      Hi Sally,I needed a TB test to get a job to drive a schoolbus.

      • Joe H.

        You probably needed an HB1 test also!!! When I got married, many moons ago people had to get blood tests to get married!!!!

  • Dale

    Remember when tobacco companies used to spend millions sponsoring race cars, jazz festivals and other cultural events . . . then “all-knowing” Govt decided that was evil. If there is any “Free-Speech” left it applies to all . . . if tobacco is bad – why don’t they just BAN IT???
    Of course they won’t cause they want the tax revenue, more nanny-state hypocrisy looking after you every day . . .

    • titan

      It’s about money and it’s always been about money…..not to individuals who chose to smoke, but to the lawyers who received billions from the tobacco law suits. Did you get any money in your state? Everyone got something, but where is it? Nobody seems to know. Look up John O’Quinn who is recently deceased, on the internet. He was the major attorney involved. You’ll get the real numbers if you look hard enough. It is all about money. Did you really think your government loved you that much? Yea, Right. No big money to be made? then you can forget about it. Where there’s a ban, there’s a huge lawsuit about to begin, but we won’t be getting any of the money, just the aggravation of yet, another thing, being ostracized from society from peers who think they are in control of your life. Some people think they are going to live forever, but, they’re not. We all bite the dust in the end. Enjoy life fully now because it’s all over soon enough whether you eat too much salt or not. None of us will live forever. As I watched people jumping off those towers in NYC in 2001, I later wondered how many of them were on strict diets and who had not truly enjoyed life, thinking they would live forever. Morbid, I know, but that hit my mind after the shock of it all.All we have is today and no promise of tomorrow, let’s enjoy life and leave everybody else alone to enjoy life. Remember the book, “I’m OK, you’re OK”? Why can’t we just do that and let everybody live their lives and be happy the best way they can. Must we constantly be interferring in other people’s lives, when we can’t even control our own?

      • Meteorlady

        The fact is that if smokers had consideration for others, there would be no non-smoking laws in affect. I cannot tell you how bad it is to sit in a restaurant or other public space with smoke swirling around you. While I am not sure about second hand smoke, I know that genes have something to do with longevity. Also, while I don’t like the smoke around me while eating, I have the option to go somewhere else. What I don’t have the option to do is go somewhere else when I’m required to be in that space at that time. So what’s the solution? Not sure, maybe more education or people need to speak out when someone is being inconsiderate. Oh wait, we are used to the government doing that for us now…. sorry that was a stupid thought that someone would actually stand up for themselves.

  • chuck b

    how about all the supporters of legalizing marijauana, most of these folks are the ones yelling about other people smoking and if i believe right they inhale smoke from a joint.but, thats the way liberals think!! or do they bake a lot of cookies.

    • DaveH

      Interesting point Chuck. I wonder how many of the anti-smoking Liberals also advocate legalized marijuana? That would be a bit hypocritical.

    • Meteorlady

      Where did you get the idea that pot smokers are all liberal? Is there some statistics on this? Is there a medical study that supports that pot is worse or better than smoking?

      • chuck b


        its hard to determine how much more harm there is in smoking marijuana. cigarette smoking we know is harmful and i think affects the human body differently. pot is determinedly more mind altering and does effect the memory process, however, is the smoke from cigarettes more deadly than the smoke from marijuana?? people inhale both! so where does the hypocrisy start and most of the groups advocating legalizing marijuana are very liberal and most are not concerned about the collecting of tax. the libertarian party wants to legalize drugs and they are concerned about taxable income and also thinking it will solve a lot of crime by doing so. this may be the case, but i am not of that belief.

  • titan

    If the people want tobacco stopped, then pass an amendment to the constitution to make tobacco illegal as happened with the Prohibition days. Why go through the back door with this? The more talk about making tobacco taboo only makes kids want to do it more. Once the government gets through with giving us instructions on what we can do, we will be fully socialistic. The move is now on salt and carbonated drinks. If you’re overweight, you are costing money to the government and are said to be the major problem, so, you will lose weight and get in shape. I could go on and on but I believe you get the point. You will not drink coffee if the government taxes it to death if the government can bring in a few good people to say it’s bad and those people do exist. It will never stop.Let’s get our noses out of everyone else’s private lifestyles and tend to our own business.I do not know one person who doesn’t need reforming of something they don’t think they need reforming from. Let’s start on this board with control freaks who are busy bodies. Get another hobby.

  • http://Yahoo Dee D


  • AnhydrousBob

    When is the government ever justifiable in restricting what adults choose to do (as long as it doesn’t harm anyone else)?

  • Meteorlady

    Let me get this right? Drug companies can advertise their poisons (have you read some of the side affects on certain drugs?) and tobacco is dangerous to the public. If it is a question of health care costs then let them pay for more for their insurance if they smoke or are over-weight, or generally don’t take good care of themselves. The rest of us don’t really care if they kill themselves – we just care about the cost to us in dollars. The government is protecting the public? What the heck – aren’t we intelligent enough to protect ourselves from these advertisements? If tobacco was illegal it would still be sold and smoked (example is Pot). You cannot legislate bad habits, you can only make people accountable by costing them money when they consistently apply bad habits in their lives (higher insurance premiums). Drug companies actually spend about 57 million a year in advertising. Part of the costs of prescription drugs is the cost of lawsuits built in. If you read the side affects for some even death is mentioned. If one person dies from a drug on the market that is too many. These companies are legal drug pushers who do not adequately and fairly test their products before sending them to market. Why not ban drug company advertising? It was once banned, but Clinton signed a law in 1999 allowing them to start advertising (after hugh amounts of money were expended by their lobbyists). If I have to ask my doctor, I need a new doctor.

    • Joe H.

      Au contraire !!! If the dr has to tell you without you asking then he/she needs a new patient!!! self responsibility and all that!!! the Dr. will look up all drugs listed in his PDR, but if they are not yet listed, then he should not have to memorize all the effects without you asking. If it isn’t important enough to you to ask, then why should it be any different with him???

    • James

      Meteorlady, The federal government was not created to look after us. It was delegated only certain powers (Art. I, Sect. 8) and the Bill of Rights said, in effect, “hands off of our right.” If people want to smoke themselves to-death, that’s there privilege, but when the naational government uses its taxing power to bring about a result that they feel is good for us, they’ve misused that power. In U.S. v. Butler, the U.S. Supreme Court held that Congress does not have the power “to tax one group for the benefit of another.”

  • Stupid TeaBagger

    If someone wants to stop smoking & asks their Dr. for medication to help them the Dr. is usually all for it. Problem is, when you get to the pharmacy, the insurance company will not cover it. So, if the left wingnuts want to do something positive regarding smoking, why don’t they make it mandatory for the insurance companies to cover drugs that help with smoking cessation, weight loss, salt loss:), etc. Or, why can’t the tax revenues on cigarettes pay for those same medications if the true reason for the tax is to stop people from smoking? Does anyone here know of an insurance company that covers smoking cessation drugs or of a Government funded program that supplies them free of charge?

    • macatac

      I have Aetna, and the plan I have will pay (once, 100%)

  • Moonifa

    @ Stupid Teabagger: ,…”why don’t they make it mandatory,…

    Argggh! That’s the problem with society and Americans in general. “They” being the government, making yet something else, “mandatory”. That is exactly why we are in this mess, and why we are no longer a free nation. Government is too big for it’s britches now, and it absolutely infuriates me to hear someone say, “why doesn’t the government do this or that”? Come on people. THINK! WE DO NOT NEED MORE LAWS OR MANDATES. WE DO NOT NEED TO LOSE MORE FREEDOMS. IF SOMEONE AROUND YOU SMOKES OR DOES SOMETHING YOU DON”T LIKE. suck it up. We all need to learn to be more tolerant. We as a nation, and as individuals have become so intolerant of what we don’t like. Being around cigarette smoke is TEMPORARY. Get over it. Being in a long line at a store when you are in a hurry is not anyone else’s fault. Suck it up. See where I am going with this? In a thousand little ways, I daily see people chaff over stupid trivial stuff. It didn’t used to be that way. Nowadays people are so used to being entertained and pampered that they have lost their roots of humanity. Study how this country was founded. Start learning about the Constitution and what it says so simply and so beautifully and reflect on those principals. A good place to start would be on You Tube with Michael Badnarik’s Constitution classes. It will blow you away and definitely give you reason to re-evaluate your current mode of thinking.

  • tobacco advertising

    I’m really impressed with your writing skills and also with the layout on your blog. Is this a paid theme or did you modify it yourself? Either way keep up the nice quality writing, it is rare to see a great blog like this one today.


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