Ad Space vs. Advocacy?

Judge sides with tobacco companies in blocking FDA's graphic cigarette warning labels

Published in CSP Daily News

WASHINGTON -- A federal judge granted a preliminary injunction that blocked new U.S. rules for enhanced health warnings on cigarette packaging from going into effect, saying the tobacco companies that sued may win their claims that the warnings violate freedom of speech, according to Bloomberg and other reports.

U.S. District Judge Richard Leon in Washington ruled yesterday that ordering tobacco companies to display graphic images of diseased lungs and a cadaver bearing chest staples on an autopsy table may "unconstitutionally compel speech."

Click here to view the FDA's cigarette warning labels.

Leon granted a request by five tobacco companies seeking to postpone the September 22, 2012, deadline for the regulations to take effect while the court reviews the rule's constitutionality. The preliminary injunction stays the effective date of the regulations until 15 months after the final resolution of the litigation.

"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.

"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking--an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his 29-page opinion, according to a separate Associated Press report. He pointed out that at least some were altered photographs to evoke emotion.

He also pointed out the size of the labels suggests they are unconstitutional--the FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20% of cigarette advertising, and marketers were to rotate use of the images. Leon said the labels would amount to a "mini-billboard" for the agency's "obvious anti-smoking agenda."

The U.S. Department of Justice argued that the images, coupled with written warnings, were designed to communicate the dangers to youngsters and adults. The FDA declined to comment on the judge's ruling.

Lorillard, R.J. Reynold Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. sued in August, saying the U.S. Food & Drug Administration (FDA) regulation mandates for cigarette packs, cartons and advertising violate the First Amendment.

Floyd Abrams, a partner in the New York law firm of Cahill Gordon & Reindel, who is representing Greensboro, N.C.-based Lorillard, saidin a statement that the ruling "reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products."

"We're pleased with the judge's ruling and look forward to the court's final resolution of the case," Bryan Hatchell, a spokesperson for Reynolds American Inc. (RAI), R.J. Reynolds's parent, told Bloomberg.

Stephanie Yao, a spokesperson for the FDA, told the news agency that it "does not comment on proposed, pending or ongoing litigation."

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

Click here for previous CSP Daily News coverage of the cigarette warning labels.

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cigarettes