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FEDERAL JUDGE SIDES WITH BIG TOBACCO ON FDA CIGARETTE GRAPHIC LABELS: JUST AS WE PREDICTED – WHAT HAPPENS NOW?

posted by kjalaw on Mar 4th, 2012 at 7:30 am

We have been monitoring the case where U.S. District Judge Richard Leon has been presiding over the fight between the Food and Drug Administration (“FDA”) and the five biggest tobacco-making companies in the United States (“Big Tobacco”): Commonwealth Brands, Inc.; Liggett Group, LLC; Lorillard Inc; R.J. Reynolds Tobacco Co., and Santa Fe Natural Tobacco Company Inc.

Read our November 2011 post here, where we predicted that just as Judge Leon ordered an injunction on the graphic labels being placed on cigarette packaging as the FDA wanted, Judge Leon would grant the Big Tobacco request for a judgment that blocked the FDA’s attempts to put graphic images with clear text defining the dangers of humans using tobacco products.

Cruise through a slide show of these graphic images at the FDA website.

Yesterday, the federal judge granted a summary judgment in favor of the big tobacco companies. The FDA lost. For now, there will be no new regulations mandating these new, powerful graphic labels being placed upon U.S. cigarette packages.

Read the full text of the Judge’s summary judgment in Cause No. 11-1482 before the United States District Court for the District of Columbia here.

Why Block the Graphic Images Regulation?

The judge wrote in his judgment that these graphic images – which admitted are jarring, after all they are meant to be — “….violate the First Amendment by unconstitutionally compelling speech.

It’s true that the constitution protects against forced speech.  However, there are exceptions to this under the First Amendment, like when the public needs to be protected and the forced speech is being asked of for-profit concerns (like Big Tobacco).   Shouldn’t this exception apply here?  Nope, according to Judge Leon.

The judge writes that these exceptions “… are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard.“  Which means that the graphic images regulation doesn’t fit into the forced (i.e., “compelled”) speech exception under the First Amendment.

Judge Leon Didn’t Find the FDA Labels to be Factual or Accurate.  Really?

Furthermore, the judge didn’t find the FDA labels to be “factual nor accurate,” and pointed to the autopsy table graphic as an example. From Judge Leon:  “… the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking.”

Tell it to the Surgeon General. Does anyone really think that smoking doesn’t kill people?

Expect the FDA to appeal this decision.  Soon.

 

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