Judge: FDA can’t force cigarette makers to use graphic warnings

Editor’s Note:  FDA has lost the single most high profile issue on the maiden voyage of the Center for Tobacco  Products.   CTP  is need of a serious post mortem to ensure that the agency has in place procedures that result in regulations  that are  not only  supported by prevailing law but are science based.  To this end  CTP should invite  public suggestions on how its evalution procedures could be improved while  the agency is in its infancy.

By Sara Forden

Bloomberg NewsThe U.S. Food and Drug Administration was blocked Wednesday by a federal judge from requiring tobacco companies to put graphic health warnings on cigarette packaging.

U.S. District Judge Richard Leon in Washington said the government’s rules on “mandatory graphic images violate the First Amendment by unconstitutionally compelling speech,” Leon wrote in the decision.

Under direction from Congress, which wanted tobacco companies to use color graphics depicting the negative health consequences of smoking, the FDA selected nine images — including ones of a corpse and cancerous lungs. The FDA wanted to require tobacco companies beginning Sept. 22 to put one of the labels on each pack of cigarettes, pairing the images with text such as, “Smoking can kill you.”

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

“The opinion is a straightforward and clear affirmation that compelled speech by the government is not only rarely constitutional but plainly unconstitutional in this case,” said Floyd Abrams, a lawyer for Lorillard Tobacco.

Michelle Bolek, an FDA spokeswoman, said that the agency doesn’t comment on litigation as a matter of policy.

Christopher Hansen, president of the American Cancer Society Cancer Action Network, said the ruling “is bad for public health” and a “victory for big tobacco.”

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