Advocacy or Fact?

Published in CSP Daily News

Ruling on preliminary injunction to block graphic cigarette warnings likely in October

WASHINGTON -- In a hearing that lasted two hours, a federal judge closely questioned a government lawyer on whether the U.S. Food & Drug Administration (FDA) can force tobacco companies to post graphic images on their cigarette packages showing the health effects of smoking.

U.S. District Judge Richard Leon sought answers on whether the FDA's nine graphic images convey just the facts about the health risks of smoking or go beyond that into advocacy, a critical distinction in the case, said an Associated Press report.

R.J. Reynolds Tobacco Co. (RJRT), Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. filed the motion in August, as part of a lawsuit against the FDA that challenges the constitutionality of the warnings.

Click here to view the FDA's warning labels.

"The rule infringes [on the] plaintiffs' right to engage in free speech, including commercial speech with lawful adult customers, under the First Amendment," according to the motion.

As constitutionality is being determined, the preliminary injunction seeks to postpone the effective date of graphic and textual warnings until 15 months after validity of the rule is determined. According to the motion for preliminary injunction, "Absent preliminary relief, [the] plaintiffs will suffer immediate and irreparable harm. … Those substantial expenditures will have been wasted if this court should hold the rule to be invalid in whole or in part."

In documentation accompanying the motion, RJRT detailed a potential $11.5 million in costs the company would incur to modify its approximately 480 distinct package designs. The company also estimated the effort will require 4,000 hours of employee time.

While lawyers for the tobacco companies argued that the government is free to tell people how to live through enacting smoking bans on teenagers and requiring written, factual warnings on the sides of cigarette packages from the Surgeon General about the effects of smoking, it cannot "conscript" the companies "into an anti-smoking brigade," as First Amendment lawyer Floyd Abrams told the judge.

The judge questioned Justice Department lawyer Mark Stern about why the images did not amount to advocacy. "What do you say is the line" between advocacy and fact, he asked Stern.

"This is not an ordinary product," and the images coupled with written warnings are designed to communicate the dangers to the public--including youngsters as well as adults, Stern replied.

Leon said he hopes to issue a ruling by the end of October.

As the law currently stands, cigarettes for sale or distribution in the United States can no longer be manufactured or advertised after September 22, 2012 (one year from today), without the new cigarette health warnings. And as of October 22, 2012, cigarette manufacturers can no longer distribute cigarettes for sale in the United States unless they display the new cigarette health warnings. Retailers will be allowed to sell through any remaining product they have. The FDA's Center for Tobacco Products has said that retailers will be able to sell-through merchandise that was put into the "streams of commerce."