Center for Tobacco Products News

WASHINGTON (Legal Newsline) — A federal appeals court last month denied a request by the federal Food and Drug Administration to rehear a case involving graphic images on cigarette packaging.

In August, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FDA’s new rule requiring the warnings — images such as diseased lungs and a cadaver with chest staples — is unconstitutional.

The decision is in conflict with the Sixth Circuit’s ruling, setting up a likely appeal and judgment from the U.S. Supreme Court.

In response to the D.C. Circuit’s ruling, the FDA filed a petition for rehearing and rehearing en banc in October.

“In sum, this case presents a question of exceptional importance,” the federal government wrote in its 16-page request.

“The majority’s reasoning is wrong and it conflicts with the Sixth Circuit’s analysis of graphics in Discount Tobacco. We respectfully submit that the case should be reheard en banc.”

In a Dec. 5 order, the D.C. Circuit denied the FDA’s petition for panel rehearing. According to the single-page order, Judge Judith Ann Wilson Rogers was in favor of granting the petition.

In a separate order filed the same day, the federal appeals court also denied the FDA’s request for a rehearing by the full court.

“Appellants’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition,” Court Clerk Mark J. Langer wrote.

“Upon consideration of the foregoing, it is ordered that the petition be denied.”

Those judges in favor of a rehearing en banc included Rogers, David S. Tatel and Merrick B. Garland, according to the one-page order.

The court’s 2-1 decision in August affirmed an earlier ruling by Judge Richard Leon that granted a preliminary junction. Oral arguments were held in April.

Leon

The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the authority to regulate the manufacture and sale of tobacco products. After new warning statements were implemented, the FDA proposed nine graphic images.

In addition to the two previously mentioned, images that were included were:

– A man exhaling cigarette smoke through a tracheotomy hole in his throat;

– Cigarette smoke enveloping an infant being kissed by its mother;

– A mouth filled with cancerous lesions;

– A man breathing into an oxygen mask;