FDA Will Not Continue Court Battle Over Graphic Cigarette Labels

Mar 20, 2013
CSNews

RICHMOND, Va. — In the face of steep legal opposition, the Food and Drug Administration (FDA) has decided to scrap its nine graphic cigarette warning labels and start all over again.

The agency will go back to the drawing board and create new labels instead of continuing to fight for its current proposed labels that include images of diseased lungs and the sewn-up corpse of a smoker. The government had until Monday to ask the U.S. Supreme Court to review an appeals court decision upholding a ruling that the labels requirement violated First Amendment free speech protections.

“In light of these circumstances, the Solicitor General has determined…not to seek Supreme Court review of the First Amendment issues at the present time,” stated a letter from Attorney General Eric Holder to House Speaker John Boehner, obtained by the Associated Press. The FDA released the nine warning labels — a mixture of graphic images and text — in June 2011 and mandated that they appear on all cigarette packaging and advertising by Sept. 22, 2012.

However, the mandate was immediately met by opposition, namely from tobacco companies. R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands Inc. and Liggett Group LLC that took up a legal challenge on the grounds that the new warnings violated the free speech clause of the First Amendment. They contended it was unconstitutional to force tobacco companies to disseminate the government’s anti-smoking message, as CSNews Online previously reported.

In response to the suit, the FDA argued that the public interest in conveying the dangers of smoking outweighs the companies’ free speech rights. The agency also pointed out that Congress gave it the authority to require the new labels because the existing warnings dating to 1984 were going unnoticed and health warnings weren’t being conveyed effectively.

The tobacco companies won the first round in the fight against the new graphic cigarette warning labels in November 2011 when U.S. District Judge Richard Leon granted a temporary injunction blocking the labels requirement. Leon’s decision came as he determined that the tobacco companies would likely win their lawsuit challenging the FDA requirement as unconstitutional.

Leon followed the temporary injunction by striking down the warning labels in a February 2012 decision, ruling that they are unconstitutional and violate the tobacco companies’ First Amendment rights.

In a statement on Tuesday, the FDA said it would “undertake research to support a new rulemaking consistent with the Tobacco Control Act.” The agency did not provide a timeline for the release of revised labels, according to the Associated Press.

“Although we pushed forcefully…(the) ruling against the warning labels won’t deter the FDA from seeking an effective and sound way to implement the law,” Dr. Howard Koh, assistant secretary of the Department of Health and Human Services, wrote in an blog post Tuesday afternoon.