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Cigarette Warning-Label Ruling Won’t Be Appealled by U.S.

The U.S. Justice Department won’t ask the Supreme Court to overturn a lower court ruling that struck down rules requiring graphic health warnings on cigarette packaging.

Attorney General Eric Holder, in a letter to Congress dated March 15, said the Food and Drug Administration will create new regulations that address the First Amendment concerns raised by the appeals court, which in a 2-1 decision found the requirements violated the free speech rights of tobacco companies.

“If a court of appeals were to set aside new regulations issued by FDA at a later date, there will be an opportunity to seek full Supreme Court review at that time,” Holder said.

The FDA was sued in 2011 by R.J. Reynolds, a unit of Reynolds American Inc. (RAI), Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. The companies claimed the mandates for cigarette packages, cartons and ads, passed as part of the Family Smoking Prevention and Control Act, violated the First Amendment because the government was using “threats and fear” to motivate people to stop using a lawful product.

Tracheotomy Hole

The government argued that the nine images selected by the agency to be placed on packages and advertisements are true depictions required by Congress to show the negative health consequences of smoking. One image was a man with cigarette smoke coming out of a tracheotomy hole in his throat. Another was a cadaver with chest staples on an autopsy table.

The graphics were supposed to cover the top half of the front and back of cigarette packages and 20 percent of print advertisements.

The U.S. Court of Appeals in Washington ruled on Aug. 24 that the visual images, along with the phone number 1-800-QUIT- NOW, are “unabashed attempts to evoke emotion” and “browbeat consumers” to stop buying the companies’ products.

The department’s request that the full appeals court reconsider the ruling was rejected in December.

Bryan Hatchell, a spokesman for Reynolds, and Robert Bannon, a spokesman for Lorillard, didn’t reply to telephone calls and e-mails seeking comment on Holder’s letter.

The case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-5332, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporters on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net; Phil Mattingly in Washington at pmattingly@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; Steven Komarow at skomarow1@bloomberg.net

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