In a short order that came without comment, the 4th U.S. Circuit Court of Appeals was referred to the high court's recent 44 Liquormart ruling, which said commercial speech has much the same First Amendment protections as non-commercial speech and that bans of non-misleading advertising should be a rare last resort by governments.
SIMILARITY TO FDA REGS
While the high court had already sent back for re-examination a similar Baltimore ban on outdoor boards carrying alcoholic beverage ads, ad groups noted the similarity of the cigarette case to FDA's proposed restrictions, and said the action indicated the high court viewed tobacco ad restrictions no differently from any others.
"Had the court believed the [tobacco] ban had any constitutional or other legal justification, then the court, at a minimum, would have decided to accept the case and hear it during its next term," said John Fithian, counsel for the Freedom to Advertise Coalition.
"Instead, the rulings send the unambiguous message that the court will not tolerate government attempts to restrict the First Amendment liberty of commercial speech," Mr. Fithian said.
Dan Jaffe, exec VP of the Association of National Advertisers, called the court action " a further signal that the FDA's regulations are in serious jeopardy."
A Baltimore outdoor company, Penn Advertising, had challenged the ban.