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Tobacco Companies Win Against FDA Graphics Mandate in Federal Court

Date Posted: March 1, 2012

A federal judge Feb. 29 ruled against the Food and Drug Administration’s mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking. Federal judge Richard Leon said in his 19-page ruling that the requirements we a violation of free speech.

“The graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks” said Leon. “Rather they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”

The Family Smoking Prevention and Tobacco Control Act passed in 2009 would have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children.” It would also have included alternating images of a corpse and smoke-infected lungs.

“Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech,” said A group of tobacco companies led by R.J. Reynolds and Lorillard had sued, saying the warnings would be cost-prohibitive, and would dominate and damage the packaging and promotion of their particular brands. The legal question was whether the new labeling was purely factual and accurate in nature, or was designed to discourage use of the products,” Leon wrote in his ruling.

There was no immediate reaction to the ruling from the FDA, and the Justice Department, which defended the law in court, said it had no comment.

But the Department of Health and Human Services did issue a state saying it would continue to fight for the requirement.  “This Administration is determined to do everything we can to warn young people about the dangers of smoking, which remains the leading cause of preventable death in America.  This public health initiative will be an effective tool in our efforts to stop teenagers from starting in the first place and taking up this deadly habit.  We are confident that efforts to stop these important warnings from going forward will ultimately fail,” the HHS said  in a statement.

But the president of the American Cancer Society Cancer Action Network declared the ruling “bad for public health.”

The federal law in question would also regulate the amount of nicotine and other substances in tobacco, and limit promotion of the products and related promotional merchandise at public events like sporting contests. The free speech aspect was the only issue in the current case.

Several other lawsuits over the labels are pending in federal court, part a two-decade federal and state effort to force tobacco companies to limit their advertising, and settle billions of dollars in state and private class-action claims over the health dangers of smoking.

The case is R.J. Reynolds v. U.S. Food and Drug Administration (cv-11-14820).

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