Tobacco Companies Win Major Victory Over FDA

Federal judge blocks new graphic warning labels

Tobacco companies scored a major victory in court Monday, when a federal judge issued a preliminary injunction blocking the Food and Drug Administration from requiring graphic new warnings on all cigarrette and tobacco packages and advertising.

In a 29-page opinion, U.S. District Judge Richard Leon wrote that "the plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech, and that they will suffer irreperable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA's rule."

The FDA issued its rule—which consisted of nine, very scary pictures of blackened lungs, cadavers and other horrific images to be applied to cigarette packaging—in June. Five tobacco companies, including R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Co. filed against the rules, arguing that the mandatory warnings run afoul of the First Amendment because they go beyond what is factual and neutral.

"Today's ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products," said Floyd Abrams, a prominent First Amendment lawyer who is representing Lorillard. 

The decision is likely to slow down the FDA's requirement that the warnings be displayed on all packaging by September 2012. As part of the injunction, the regulations may not go into effect until 15 months after the final resolution of the litigation.

The government can appeal the injunction, however, and it could of course be rendered moot if the tobacco companies ultimately lose the case as a whole.