FDA’s New Cigarette Warning Labels Ruled Unconstitutional

Labeling went beyond factual and neutral warnings

The federal government is going to have to find another way to scare smokers. A federal district court judge yesterday ruled unconstitutional the 36 graphic cigarette warning labels that manufacturers would have been forced to place on the top half of the front and back of all cigarette packages.

R.J. Reynolds Tobacco Co.; Lorillard Tobacco Co.; Commonwealth Brands, Inc.; Liggett Group LLC; and Santa Fe Natural Tobacco Co. filed a suit charging that the Food and Drug Administration's new mandatory warnings violated the First Amendment because they went beyond factual and neutral disclosures.

U.S. District Judge Richard Leon sided with the tobacco companies, formalizing the preliminary injunction he issued in November that blocked the FDA from requiring the companies to place the labels on the packages by September 2012.

"While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear," wrote Leon in a 19-page opinion. The labels, he wrote, strayed from being factual. "They were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."

Tobacco manufacturers hired some of the nation's top First Amendment attorneys to represent them, including Floyd Abrams, who compared the warning labels to a "mini-billboard" for the government's anti-smoking message.

Proposed in November 2010 as required under the Family Smoking Prevention and Tobacco Act signed into law by President Obama in June 2009, the ad-like labels were meant to scare people away from smoking by depicting horrifying images, such as cadavers and blackened lungs.

The Association of National Advertisers, which filed against the FDA's ruling and filed an amicus brief with the court, was concerned that if the cigarette warning labels were deemed constitutional, it could extend to other products like alcohol or violent videos. “This rule would have set a very dangerous precedent,” said Dan Jaffe, executive vice president of the ANA.

The government is expected to appeal the court's ruling.