Monday, November 7, 2011

Judge Rules Against Graphic Cigarette Packs


District Court says FDA mandate would violate First Amendment.

Consumers may yet be spared graphic images of diseased lungs and smokers with holes in their throats, after R.J. Reynolds, Lorillard, and other tobacco companies prevailed over the Food and Drug Administration in the U.S. District Court for the District of Columbia today. Judge Richard Leon ruled that forcing cigarette manufacturers to offer their products only in gruesome packages was a violation of free speech, and therefore unconstitutional. The companies were granted a preliminary injunction, while the FDA regroups and lawyers rehuddle.

The judge wrote that “plaintiffs raise for the first time in our Circuit the question of whether the FDA's new and mandatory graphic images, when combined with certain textual warnings on cigarette packaging, are unconstitutional under the First Amendment. Upon review of the pleadings, the parties' supplemental pleadings, oral argument, the entire record, and the applicable law, the Court concludes that plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech, and that they will suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA's Rule.” (Complete ruling available here).

As Josh Gerstein reported at POLITICO, Leon “found that the new warnings, which occupy 50% of the front and back of cigarette packs, convert them into "mini-billboards...for [the FDA's] obvious anti-smoking agenda." Both Health and Human Services Secretary Kathleen Sebelius and FDA Commissioner Margaret Hamburg were also named in the lawsuit.

Judge Leon foresees a slippery constitutional slope if such mandates are allowed to bloom:

When one considers the logical extension of the Government's defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public's interest in preserving its constitutional protections - and, indeed, the Government's concomitant interest in not violating the constitutional rights of its citizens - are best served by granting injunctive relief at this preliminary stage.

Graphics Credit: http://pubcit.typepad.com

2 comments:

Anonymous said...

So do we start showing pregnant women pictures of all the horrible diseases that their yet-to-be-born child could get when he/she gets old?
I'm frankly sick to death of this hypocracy. The issue with smoking is not that it will kill you, you will die irrespective and probably not in a more pleasant way, the issue is that smoking will probably kill you prematurely.
Most of the anti-smoking ads we see on Australian television would be equally true if you replaced the word "smoking" with "living".

rachelrachel said...

Some news outlets are reading too much into this injunction. The court is not saying that the "FDA mandate would violate [the] First Amendment. This is from a law blog that I think has it right:

This week’s granting of a preliminary injunction by U.S. District Judge Richard Leon does not amount to the overturning of the FDA rule itself. What the injunction does do is block the rule from taking effect until the lawsuit over the requirement is resolved; specifically, in Judge Leon’s words, until “the constitutionality of the commercial speech that these graphic images compel” can be evaluated.

The judge is saying that we don't know whether it violates the First Amendment. There is a "substantial likelihood" that it might be so ruled, and the likelihood is significant enough that instead of going ahead with this new requirement, we'll wait until all the arguments are made and the ruling comes down.

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