Cigarette package warnings stopped citing free speech

A federal judge has obstructed a U.S. rule requiring tobacco companies to display graphic images on cigarette packs citing free speech.

U.S. District Judge Richard Leon made the landmark decision Monday and granted a temporary injunction, saying they would likely prevail in their lawsuit challenging the requirement as unconstitutional because it compels speech in violation of the First Amendment.

The Food and Drug Administration (FDA) in June released nine new warnings to go into effect in September of 2012, the first change in U.S. cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General. The new warnings must cover the top half of the front and back of cigarette packs and 20 percent of printed advertisements and must contain color graphics depicting the health consequences of smoking, including diseased lungs, dead bodies and rotting teeth.

“The sheer size and display requirements for the graphic images are anything but narrowly tailored,” Leon wrote in a 29-page opinion. Just because Congress ordered the size and placement of the new warnings before charging the FDA with carrying out the mandate, “doing so does not enable this requirement to somehow automatically pass constitutional muster,” he said.

“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for government advocacy can be frustratingly blurry, here -- where these emotion-provoking images are coupled with text extolling consumers to call the phone number ‘1-800-QUIT’ - the line seems quite clear,” Leon said in his ruling.

In his ruling, Leon said the images selected by the government were intended to produce an emotional response and go beyond “purely factual and uncontroversial information” that other courts found to be permissible government-compelled speech. He also said the government “side-stepped” questions about whether any single graphic warning was effective in educating consumers about smoking risks.

Reynolds American Inc's R.J. Reynolds unit, Lorillard Inc, Liggett Group LLC and Commonwealth Brands Inc, owned by Britain's Imperial Tobacco Group Plc, sued the FDA in August. They argued the new graphic warnings force them to “engage in anti-smoking advocacy” on the government's behalf, breaching their right to free speech.

The Obama administration's options include appealing Leon's ruling or the FDA could try to rewrite the rules. FDA spokeswoman Stephanie Yao said the agency did not comment on proposed, pending or ongoing litigation. Justice Department spokesman Charles Miller said the department was aware of the decision and was reviewing it.

Tobacco is the leading cause of preventable deaths in the United States, accounting for one in every five deaths every year, according to the Centers for Disease Control and Prevention. About 21 percent of U.S. adults smoke cigarettes, a number little changed since 2004. Worldwide, tobacco kills nearly 6 million people every year, including more than 600,000 nonsmokers, according to the World Health Organization, which has repeatedly called for graphic images to appear on tobacco packs, saying the pictorial warnings actually work.

Floyd Abrams, a prominent First Amendment lawyer representing Lorillard, called Leon's ruling a “vindication for the well-established First Amendment principle that the government may not compel speech in the commercial area.” He said the case was in its early stages and there was a “good chance” it will eventually reach the U.S. Supreme Court.

Leon postponed the Sept. 22, 2012, deadline for the regulations to take effect while he reviews the constitutionality of the Food and Drug Administration rule. The companies said in court papers that it would cost them a total of about $20 million to meet the 2012 deadline.

Matthew Myers, president of the Campaign for Tobacco-Free Kids, said by e-mail that the Justice Department should appeal Leon’s ruling, which he said makes it “impossible to implement any effective” warning labels. “Given the overwhelming evidence of the need for these warnings and the tobacco industry’s own admission of the factual accuracy of the warning statements, we are confident that this decision will not be the last word on the new warnings,” Myers said.

The case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-cv-1482, U.S. District Court, District of Columbia (Washington).

Dr. Ananya Mandal

Written by

Dr. Ananya Mandal

Dr. Ananya Mandal is a doctor by profession, lecturer by vocation and a medical writer by passion. She specialized in Clinical Pharmacology after her bachelor's (MBBS). For her, health communication is not just writing complicated reviews for professionals but making medical knowledge understandable and available to the general public as well.

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