Graphic cigarette warning labels blocked

Federal judge sides with tobacco companies, says FDA’s rule likely violates First Amendment

Score one for Big Tobacco. U.S. District Judge Richard Leon Monday blocked the Federal Drug Administration’s (FDA) mandate that tobacco companies include graphic images on their cigarette packages persuading customers to quit smoking.

Five tobacco companies sued the FDA in August after it released its new regulation. The companies, Lorillard Inc., R.J. Reynolds Tobacco Co., Commonwealth Brands, Santa Fe Natural Tobacco and Liggett Group, filed a lawsuit in the U.S. District Court for the District of Columbia, claiming the agency’s new regulation violates their First Amendment rights. 

In his decision, Judge Leon granted a temporary injunction, and said that the tobacco companies would likely succeed in their lawsuit.

“In short, the Government has neither carried its burden of demonstrating a compelling interest, nor demonstrated how the Rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech,” Judge Leon wrote. “As a result, plaintiffs are likely to succeed on the merits and this factor weighs heavily in favor of awarding injunctive relief.”

In June, the FDA released nine new, disturbingly explicit images, including one of a stitched up corpse accompanied by the words “WARNING: Smoking can kill you.” Another photo depicts diseased lungs with a similar warning. (Click here to see all of the images.) The images are intended to cover the entire top half—front and back—of every cigarette pack. Twenty percent of the printed ads must include color graphics depicting the harmful health consequences of smoking.

"The notion that the government can require those who manufacture a lawful product to emblazon half of its package with pictures and words admittedly drafted to persuade the public not to purchase that product cannot withstand constitutional scrutiny,” Floyd Abrams, a partner at Cahill Gordon & Reindel, which is representing Lorillard, said in a statement in August. “The government can engage in as much anti-smoking advocacy as it chooses in whatever language and with whatever pictures it chooses; it cannot force those who lawfully sell tobacco to the public to carry that message, those words, and those pictures."

The FDA countered by saying the labels are an attempt to actualize the health risks for smokers, and affirmed its right to regulate commercial speech where it sees fit.

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