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Judge says Big Tobacco’s free speech rights were violated

FDA’s cigarette labeling requirement is unconstitutional

A U.S. judge yesterday ruled that the Food and Drug Administration’s (FDA) requirement that tobacco companies include graphic labels on cigarette packaging is unconstitutional.

The labels the FDA required cigarette companies to include on their packages were meant to illustrate the dangers of smoking. They included disturbing images of rotting teeth, diseased lungs and a dead man lying in a morgue, among others.

In 2009, Congress passed a law requiring the FDA to adopt labeling regulations for cigarette companies that mandated color warning labels big enough to cover the top 50 percent of a cigarette pack's front and back panels and the top 20 percent of print advertisements. Several Big Tobacco companies fought back, filing suit against the FDA and claiming the labels required them to engage in anti-smoking advocacy against their own products, which are legal.

In his 19-page ruling yesterday, U.S. District Judge Richard Leon said, "The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech."

Last year, the same judge granted the Big Tobacco companies preliminary injunction, blocking the new requirement from taking effect. The Obama administration has appealed that ruling.

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Cathleen Flahardy

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