WASHINGTON, D.C. - (Mealey's) Saying graphic new cigarette pack warnings ordered by the U.S. Food and Drug Administration violate companies' First Amendment rights by compelling speech, a judge in the U.S. District Court for the District of Columbia on Nov. 7 issued a preliminary injunction halting enforcement of the requirement in a case of first impression for the circuit (R.J. Reynolds Tobacco Co., et al. v. U.S. Food and Drug Administration, et al., No. 11-cv-1482; D. D.C.).
"In the arena of compelled commercial speech . . . narrow exceptions do allow the Government to require certain disclosures to protect consumers from 'confusion or deception,'" Judge Richard J. Leon said, citing Zauderer v. Office of Disciplinary Counsel for Sup. Ct. of Ohio (471 U.S. 626, 651 ). "Indeed, courts apply a lesser standard of scrutiny to this narrow category of compelled speech, through which the Government may require disclosure only of 'purely factual and uncontroversial information.'"
"Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard," the judge said. "Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of 'purely factual.' That the images were unquestionably designed to evoke emotion - or, at the very least, that their efficacy was measured by their 'salience,' which the FDA defines in large part as a viewer's emotional reaction, - further undercuts the Government's argument that the images are purely factual and not controversial."
The FDA required the labels to cover the top half of the front and back of cigarette packs to contain color graphics that included a man blowing smoke through a tracheotomy hole and images of diseased lungs and rotting teeth.
[Editor's Note: Full coverage will be in the November issue of Mealey's Litigation Report: Tobacco. In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #04-111116-005Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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