FDA Mandated Graphic Cigarette Warning Unconstitutional; Smokeless Tobacco Warning Labels Next?

The Anti-All-Tobacco Extremists were dealt a body blow by U.S. District Judge Richard Leon.  At issue was a lawsuit against FDA for requiring cigarette manufacturers to use very large, very graphic warning labels against the use of cigarettes.

These Graphic Warning labels must, by FDA mandate, 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, cigarettes being smoked through traciotomy holes, and rotting teeth.

Judge Leon issued an injunction against FDA , saying that the cigarette companies would likely prevail in their lawsuit challenging the requirement as unconstitutional because it compels speech in violation of the First Amendment.

What really caught my eye was Judge Leon’s statement that the images “provoked an emotional response rather than just providing factual and noncontroversial information, crossing the line into using company advertising for government advocacy.”  This case will ultimately be decided by the US Supreme Court.  If the Supreme Court agrees with Judge Leon in their decision, this case has huge positive implications for snus, smokeless tobacco, and other reduced harm tobacco products.

Judge Leon wrote in his injuction against the graphic cigarette pack labels that

Floyd Abrams, a prominent First Amendment lawyer representing Lorillard, called Leon’s ruling a “vindication for the well-established First Amendment principle that the government may not compel speech in the commercial area.”

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.

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.

U.S. District Judge Richard Leon sided on Monday with tobacco companies and granted a temporary injunction

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

“The sheer size and display requirements for the graphic images are anything but narrowly tailored,” Leon wrote in a 29-page opinion.