Battle Continues On Graphic Warning Labels

D.C. Circuit Court of Appeals hears arguments on FDA graphic warnings for cigarettes.

On April 10, the U.S. Circuit Court of Appeals for the District of Columbia heard oral arguments regarding the constitutionality of the FDA’s graphic cigarette health warning labels.

On Feb. 28, 2012, Federal District Court Judge Richard Leon issued a decision that held the FDA’s new graphic images and text warnings for cigarette packaging and cigarette advertisements violated the free speech protections under the First Amendment of the U.S. Constitution.

In his February decision, Judge Leon ruled the FDA’s main objective was not to give the public factual information about smoking in order to make an informed choice, but rather to advocate for a change in an individual’s behavior; namely, to never start smoking or to quit smoking.  By using cigarette packaging and advertising to deliver a shocking and emotional message through graphic images, Judge Leon determined that the FDA crossed the line “between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy..”

During yesterday’s Circuit Court of Appeals hearing, the three judge federal panel raised various questions of both the Obama Administration attorney and the tobacco manufacturer attorneys.  Judge Janice Rogers Brown asked Justice Department Attorney Mark Stern whether the federal government could mandate cigarette package warnings that state, “Stop! If you buy this product, you are a moron,” or “Smokers are idiots.”  In response, attorney Stern replied, “No, I don’t think saying smokers are idiots is accurate,” and that such a warning could be “problematic.”

Judge A. Raymond Randolph asked if the government could require cars to carry a warning label with a text message that reads “speed kills” and a graphic picture of an accident scene.  Attorney Stern replied that he thought there would be no problem with such a warning label for cars.  The third judge, Judith W. Rogers, asked attorney Noel Francisco, who represents R.J. Reynolds Tobacco Co. and Santa Fe Natural Tobacco Co., whether the manufacturers were challenging the text warning statements proposed by the FDA.  Attorney Francisco replied that the text warnings were not being challenged, but the government’s requirement of printing a quit smoking hotline number on cigarette packages was going beyond being factual.

The three judge appeals court panel took the case under advisement and will issue its decision at a later date.





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