FDA Appeals Cigarette Warning Ruling

Fox  News

The Obama administration on Tuesday appealed a U.S. judge’s ruling and injunction that blocked tobacco companies from having to display graphic images on cigarette packs and advertising, such as a man exhaling smoke through a hole in his throat.

The appeal had been widely expected after U.S. District Judge Richard Leon earlier this month sided with tobacco companies and granted a temporary injunction blocking the requirement.

He said the companies would likely succeed in their lawsuit challenging the new graphic warnings as unconstitutional because it compels speech in violation of the First Amendment.

The Food and Drug Administration in June released nine new warnings to go into effect in September 2012, the first change in U.S. cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General.

Congress instructed the FDA to impose the new labels as part of 2009 legislation making the agency responsible for regulating tobacco products.

The warnings were required to cover the top half of the front and back of cigarette packs and 20 percent of printed advertisements and must contain color graphics depicting the health consequences of smoking, including diseased lungs, dead bodies and rotting teeth.

But Leon said the graphic images were not narrowly tailored, meaning they are unlikely to survive constitutional muster. He said they provoked an emotional response rather than just providing factual and noncontroversial information, crossing the line into using company advertising for government advocacy.

The administration appealed Leon’s ruling to the U.S. Court of Appeals for the District of Columbia Circuit and the case could ultimately end up before the U.S. Supreme Court.

Reynolds American Inc’s R.J. Reynolds unit, Lorillard Inc, Liggett Group LLC and Commonwealth Brands Inc, owned by Britain’s Imperial Tobacco Group Plc, sued the FDA in August to block the new advisories.

They argued the new graphic warnings force them to “engage in anti-smoking advocacy” on the government’s behalf, breaching their right to free speech.

Tobacco is the leading cause of preventable deaths in the United States, accounting for one in every five deaths every year, according to the Centers for Disease Control and Prevention. About 21 percent of U.S. adults smoke cigarettes, a number little changed since 2004.

The case is R.J Reynolds Tobacco Co et al v. U.S. Food and Drug Administration et al, U.S. District Court for the District of Columbia, No. 11-cv-1482.

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