Cigarette Warnings Blocked by Court on Free-Speech Grounds

A federal judge blocked new U.S. rules from taking effect that would put graphic health warnings on cigarette packaging, saying the required images may violate tobacco companies’ rights to free speech.

U.S. District Judge Richard Leon in Washington ruled today that ordering tobacco companies, including Lorillard and R.J. Reynolds Tobacco Co., to display images of diseased lungs and a cadaver with chest staples on an autopsy table may “unconstitutionally compel speech.”

Leon postponed the Sept. 22, 2012, deadline for the regulations to take effect while he reviews the constitutionality of the Food and Drug Administration rule.

“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.

Lorillard, R.J. Reynolds, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. sued the FDA in August, claiming its mandates for cigarette packages, cartons and advertising violate the First Amendment. The companies said in court papers that it would cost them a total of about $20 million to meet the 2012 deadline.

Stephanie Yao, an FDA spokeswoman, said by e-mail that the agency “does not comment on proposed, pending or ongoing litigation.”

‘Lawful Products’

Lorillard’s lawyer Floyd Abrams said in 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.”

Bryan Hatchell, a spokesman for Reynolds American Inc., R.J. Reynolds’s parent, said “we are pleased with the judge’s ruling and look forward to the court’s final resolution of the case.”

In his ruling, Leon said the images selected by the government were intended to produce an emotional response and go beyond “purely factual and uncontroversial information” that other courts found to be permissible government-compelled speech. He also said the government “side-stepped” questions about whether any single graphic warning was effective in educating consumers about smoking risks.

‘Fundamental Failure’

“This fundamental failure, coupled with the government’s emphasis on the images’ ability to provoke emotion, strongly suggests that the government’s actual purpose is not to inform, but rather to advocate a change in consumer behavior,” Leon said.

Matthew Myers, president of the Campaign for Tobacco-Free Kids, said by e-mail that the Justice Department should appeal Leon’s ruling, which he said makes it “impossible to implement any effective” warning labels.

“Given the overwhelming evidence of the need for these warnings and the tobacco industry’s own admission of the factual accuracy of the warning statements, we are confident that this decision will not be the last word on the new warnings,” Myers said.

The FDA regulations require textual warnings as well as certain images to be displayed on the top 50 percent of the front and back panels of every cigarette package manufactured and distributed in the U.S.

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

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