Wednesday, August 24, 2011

Tobacco Companies Seek Injunction Against Implementation of Graphic Cigarette Warning Labels

Several major tobacco companies - including Reynolds American, Lorillard, Liggett, and Commonwealth Brands (but not including Altria) - filed a lawsuit in the D.C. District Court seeking to overturn the FDA's new graphic cigarette warning labels, which are scheduled to take effect next year.

According to a Reuters article: "The lawsuit ... said the warnings required no later than September 22, 2012 would force cigarette makers to "engage in anti-smoking advocacy" on the government's behalf. They said this violates their free speech rights under the First Amendment, according to a complaint filed Tuesday with the U.S. District Court in Washington, D.C. 'The notion that the government can require those who manufacture a lawful product to emblazon half of its package with pictures and words admittedly drafted to persuade the public not to purchase that product cannot withstand constitutional scrutiny,' said Floyd Abrams, a prominent First Amendment specialist representing the cigarette makers, in a statement."

The Rest of the Story

The central question is whether these required warning labels represent bona fide health warnings - which are clearly allowable - or whether they cross the line into being anti-smoking commercials, which seems to be a violation of the tobacco companies' First Amendment rights.

The proposed New York City law that would have required stores to display anti-smoking posters at the point of sale of tobacco products seems to me to be a good example of the latter: anti-smoking messages that are intended to discourage use of the product, rather than simply to warn consumers of the health risks. The law was struck down because regulation of the promotion of cigarettes is preempted by the Federal Cigarette Labeling and Advertising Act. Whether the law would have been upheld on First Amendment concerns is not clear.

Since the graphic pictures proposed for the cigarette warning labels are directly tied to the warnings regarding the health effects, it is not as clear that these warning labels represent anti-smoking messages as opposed to bona fide health warnings.

Judge Richard Leon has scheduled a September 21 hearing in the case and plans to rule on the proposed injunction in October.

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