Federal lawmakers have exclusive authority over
tobacco-related health warnings for tobacco packaging and advertisements. Under the
doctrine of preemption, which derives from the U.S. Constitution, the Federal Government
specifically forbids states from imposing new or additional health warnings for tobacco
packaging and advertising.
The contentious history surrounding tobacco-related health warnings
raises an important message for public health professionals: preemption is a powerful
legal tool that has been used successfully to thwart effective state and local tobacco
control laws. For example, the Federal Cigarette Labeling and Advertising Act has been
used to bar (through preemption) state regulations designed to protect children from being
targeted by tobacco promotions. The vigilant public health professional remains aware of
preemption in existing and new tobacco-related laws.
This section focuses on health warnings for tobacco product packaging
and advertisements. It does not address warnings about secondhand smoke posted in public
places. Secondhand smoke warnings are sometimes required under local laws. Public health
professionals should check with boards of health or other local officials to ascertain
whether secondhand smoke warnings are required at a particular facility or building.
HEALTH WARNINGS FOR CIGARETTS
General Rule: Federal law requires that cigarette retail packages display a
government-developed health warning. Also, under federal law, cigarette manufacturers and
importers may not advertise their products without displaying a mandated health warning in
the ad. Neither state nor local governments may impose additional health warnings for
cigarette packaging or advertising. 15 U.S.C. §1333.
Enforcement Agent: The Federal Trade Commission or the United States Department
of Justice.
Penalty: Failure to display the cigarette health warning or to display the
warning properly is a misdemeanor, and punishable by a fine of up to $10,000. 13 U.S.C.
1338.
HEALTH WARNINGS FOR CIGARS
General Rule: In January 2000, the Federal Trade Commission ordered the leading
cigar companies to start to display government-developed health warnings on all of their
product packages and advertisements. The health warnings must appear on the principal
display surface. For premium cigars displayed in open boxes, the principal display surface
is the interior box top. As with cigarette warnings, neither state nor local governments
may impose additional health warnings for cigar packages or advertising. In the Matter
of Swisher International, Inc. et. al., Federal Trade Commission Docket Nos. C-3964 - 70
(Agreement Containing Consent Orders 2000).
Under regulations of the Massachusetts Attorney General, any retailer who sells hand
rolled cigars, or who displays for purchase manufactured cigars outside of their original
package must display a state-mandated warning about cigar consumption in a sign at least
50 square inches in size. 940 CMR §22.06 (2).
Enforcement Agent: The Federal Trade Commission enforces the federal law, and the
Massachusetts Attorney General enforces its regulations.
Penalty: No penalty is specified for a violation of the federal law. A violation
of the Massachusetts Attorney General’s regulations may be subject to a fine of up to
$5,000 and the cost expended to investigate and prosecute the offense. MGL c. 93A, §4.
HEALTH WARNINGS FOR SMOKELESS TOBACCO PRODUCTS
General Rule: Federal law requires that retail packages of smokeless tobacco
products - which includes any finely cut, ground, powdered or leaf tobacco that is
intended to be placed in the mouth or nose - display a government-mandated health warning
on the package’s primary display surface. Additionally, under federal law, smokeless
tobacco manufacturers, importers and packagers may not advertise their products without
including one of the federally mandated health warnings in the ad. Neither state nor local
governments may impose additional health warnings for smokeless tobacco product packages
or advertisements. 15 U.S.C. §4402
The Massachusetts Commissioner of Public Health has determined that snuff, which is a
finely ground or cut tobacco mixture that is intended to be placed in the oral cavity, is
classified as a hazardous substance. As such, containers of snuff must bear the federally
mandated health warning discussed above. 105 CMR §§650.001-650.990.
Enforcement Agency: The Federal Trade Commission or the United States Department of
Justice enforces the federal health warning. The Massachusetts Department of Public Health
enforces the Massachusetts requirement.
Penalty: Failure to display a smokeless tobacco product health warning or to
display it properly is a misdemeanor, and punishable by a fine of up to $10,000 under
federal law. 15 U.S.C. §4404. No penalties are specified for the Massachusetts
law.
