Judge Blocks Graphic Cigarette Label Images
WASHINGTON – A U.S. district judge issued a temporary injunction against the FDA from placing graphic images on cigarette packages to deter smoking. The warning requirements were scheduled to take effect on September 22, 2012.
U.S. District Judge Richard Leon said the plaintiffs — R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc. Liggett Group and Santa Fe Natural Tobacco Co. — will likely succeed in their lawsuit to block the FDA requirement and that the nine graphic images approved by the FDA go beyond fact finding about the health risks of smoking and move into advocacy, a critical distinction for a First Amendment case.
"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking — an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his opinion.
Plaintiffs allege that the FDA’s rule violates their First Amendment rights by unconstitutionally compelling speech. Although the plaintiffs do not dispute the substance of the nine new textual warnings, they claim that the new textual and graphic warning requirements “confiscate” the front and back portions of cigarette packaging.
In his legal analysis, Judge Leon points out that the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” That right applies to corporations with a few narrow exceptions. Some compelled commercial speech — “purely factual and uncontroversial information” that protects consumers from confusion and deception — is given less constitutional scrutiny by the courts. However, Judge Leon concludes that the FDA’s textual and graphic-image warning requirements — intentionally designed to evoke an emotional response and cause viewers to quit smoking — go well beyond pure factual and uncontroversial information.
As a result, the FDA’s warning requirements will have to survive strict scrutiny analysis — the highest level of scrutiny given by courts in determining the constitutionality of a law. Judge Leon’s opinion expresses serious doubts about the government’s ability to survive this process.
The government’s actual purpose behind the rule, according to Judge Leon, is not to inform, but to advocate a change in behavior — a purpose that may not be “compelling” enough to survive strict scrutiny analysis. He also notes that the warning requirements are “anything but narrowly tailored” to achieve the government’s purpose. The law must be narrowly tailored for it to be found constitutional under strict scrutiny.
Yesterday’s order does not mean that the plaintiffs have won their case. The court will now conduct a thorough constitutional analysis of the law before issuing a final ruling on the merits of claims. At this time it’s not clear how quickly the court plans to issue its final ruling.
Judge Leon’s order does guarantee that the FDA’s warning requirements will not go into effect next fall as planned — and that is a victory for the plaintiffs.