In a First Amendment victory for the tobacco industry, a federal judge has blocked a Food and Drug Administration (FDA) rule mandating that cigarette packages carry warning labels with such graphic images as a cadaver with post-autopsy chest staples and a man exhaling smoke through a tracheotomy hole in his throat.
On November 7, 2011, U.S. District Judge Richard Leon of the U.S. District Court in Washington issued a preliminary injunction [PDF] that delays the effective date of the rule. In issuing his opinion, Leon said there is a substantial likelihood that the tobacco industry would prevail in its First Amendment lawsuit, R.J. Reynolds v. FDA [PDF], which argues that the rule unconstitutionally compels speech. The First Amendment & Media Litigation Committee article, “Tobacco Suit Challenges Graphic Warning Mandate” by Diego Ibarguen and John P. D’Ambrosio, discusses this suit.
The litigation relates to the Family Smoking Prevention and Tobacco Control Act of 2009 [PDF] that gave the FDA authority to regulate tobacco products and directed the agency to require the new labels. The FDA rule creates nine new labels that included textual warnings as well as the images that were to cover the top half of the front and back of cigarette packages. These new warnings were to have been in place by September 22, 2012.
Five tobacco companies sued over the image requirement, arguing that the new rule unconstitutionally compels speech that they would not otherwise make. The only exception would be if the required warnings were factual and uncontroversial in nature.
“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking—an objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote in his 29-page opinion.
The plaintiffs had asked Leon to quickly delay the effective date of the rule while its constitutionality is decided. Otherwise the tobacco companies would have had to spend millions of dollars to begin implementing the requirements as soon as this month or next.
The judge agreed, finding that the companies would suffer irreparable harm if they were forced to follow the mandated rule before the courts decided the challenge. The U.S. Department of Justice has said it is reviewing the decision, and lawyers expect the government will appeal.
Read more...American Bar Association Section of Litigation, First Amendment & Media Litigation