Court Blocks New FDA Anti-Smoking Cigarette Labels
November 8, 2011

Court Blocks New FDA Anti-Smoking Cigarette Labels

A U.S. federal court judge has blocked the government's attempts to force tobacco companies to begin posting graphic images, including those of dead or deathly ill smokers, on their packages, various media outlets reported on Monday.

In a 29-page decision, District Court Judge Richard J. Leon approved the preliminary injunction sought by five tobacco companies who were seeking to prevent implementation of the forthcoming Food and Drug Administration (FDA) regulation, according to Rob Stein of the Washington Post.

The FDA mandate, which would have gone into effect on September 22, 2012, featured nine images that had been approved by the organization back in June.

Among those images, writes Nedra Pickler of the Associated Press (AP), are pictures of "a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother's kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman weeping; a premature baby in an incubator; and a man wearing a T-shirt that features a 'No Smoking' symbol and the words 'I Quit'."

In his ruling, Leon determined that the graphic nature of the images -- as well as the fact that they would, in the words of Reuters reporters Alina Selyukh and Jeremy Pelofsky, be required to "cover the top half of the front and back of cigarette packs and 20 percent of printed advertisements" -- went "beyond conveying the facts about the health risks of smoking or go beyond that into advocacy -- a critical distinction in a case over free speech," said Pickler.

"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, according to Bloomberg's Tom Schoenberg.

"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," he also wrote, according to Stein.

While the FDA told Schoenberg that they do not comment on ongoing or pending litigation, R.J. Reynolds Tobacco spokesman Bryan D. Hatchell told the Washington Post that they were "pleased" with the court's decision and that they looked forward to the case's "final resolution."

Anti-smoking advocates were understandably less satisfied with the ruling.

"Judge Leon´s ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness," Matthew L. Myers of the Campaign for Tobacco-Free Kids said in a statement, according to Stein. "It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health."


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