Another health law faces court challenge

The  Hill

By Julian Pecquet

Two weeks after fighting for the survival of its signature healthcare reform law before the Supreme Court, the Obama administration will be back in court Tuesday to defend another part of the president’s agenda to make Americans healthier.


The D.C. Court of Appeals is scheduled to hear oral arguments in a case brought by five tobacco companies challenging regulations requiring graphic warning labels on cigarette packs and advertisements starting in September. Once again, the administration is finding itself accused of overstepping its constitutional authority, this time on First Amendment grounds.

 “The graphic images … were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking,” federal Judge Richard Leon, a George W. Bush appointee, ruled in February.

 Leon’s critics argue that his litmus test for what constitutes permissible federal limitations on free speech should not apply to commercial speech, which is not as widely protected as political, religious or artistic expression. They also argue that the government has a compelling interest in protecting public health through the regulations.

 While some conservatives are eagerly anticipating another blow against the Democrats’ agenda, congressional Republicans have been largely silent on the matter after many of them voted for the law that made the regulations possible.

 The 2009 law that gave the Food and Drug Administration (FDA) authority over the tobacco industry passed by wide bipartisan margins of 79-17 in the Senate and 307-97 in the House.

 Democrats, by contrast, have been energized by Leon’s ruling.

 Six senators — Dick Durbin (D-Ill.), Frank Lautenberg (D-N.J.), Tom Harkin (D-Iowa), Sherrod Brown (D-Ohio), Jeff Merkley (D-Ore.) and Richard Blumenthal (D-Conn.) — wrote to the FDA and Department of Justice urging them to appeal Leon’s ruling after he issued a temporary injunction against the regulations last November.

 Two other courts — the U.S. District Court for the Western District of Kentucky and the U.S. Court of Appeals for the 6th Circuit — have upheld the labeling requirements.

 “Faced with evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act’s new warnings are reasonably related to promoting greater public understanding of the risks,” the 6th Circuit wrote in upholding the warnings.

 “A warning that is not noticed, read, or understood does not serve its function. The new warnings rationally address these problems by being larger and including graphics,” the judges wrote.

 The regulations are part of the Obama administration’s larger public-health agenda, which includes a $15 billion prevention fund created by the healthcare reform law. The nonpartisan Congressional Budget Office has projected an 11 percent decline among underage tobacco users thanks to the tobacco law, along with $0.8 billion in savings to the federal government over 10 years, thanks in part to lower costs to the Medicaid program.

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