Earlier this month, U.S. District Judge Richard Leon ruled that the cigarette makers are likely to succeed in a lawsuit to stop a Food and Drug Administration (FDA) requirement that they put graphic images across the top half of all their packs.
The images included photos of dead and diseased smokers, which Leon said went beyond conveying the facts about health risks into stop-smoking advocacy. The requirement was supposed to go into effect next year. But Leon blocked it until after the lawsuit is resolved, which could take years.
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.
The Food and Drug Administration in June released nine new warnings to go into effect in September 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. Congress instructed the FDA to impose the new labels as part of 2009 legislation making the agency responsible for regulating tobacco products.
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 to block the new advisories. 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.
But Leon said the graphic images were not narrowly tailored, meaning they are unlikely to survive constitutional muster. He said they provoked an emotional response rather than just providing factual and noncontroversial information, crossing the line into using company advertising for government advocacy.
The Obama administration is appealing the judge’s order against stopping the requirement of the images on cigarette packs. The administration filed a notice of appeal Tuesday to the U.S. Court of Appeals in Washington.