Litigation

Troutman Sanders LLP: Lawsuits Likely Following FDA's Release Of Mandated Graphic Warning Labels

In the wake of the FDA's release of new graphic cigarette health warnings that must cover the top fifty percent of both the front and rear panels of each cigarette package as of September 2012, the four leading tobacco companies are threatening legal action, claiming the required warnings violate their property and free speech rights.  Three of the four companies, R.J. Reynolds, Lorillard, and Commonwealth Brands, as well as other companies, are already challenging the new graphic warnings requirements in the U.S. Court of Appeals for the Sixth Circuit.  In that case, which originated in the U.S. District Court for the Western District of Kentucky, the companies assert, among other things, that the mandated warnings unconstitutionally infringe on their First Amendment free speech rights and effect an unconstitutional taking of property in violation of the Fifth Amendment by "seizing a substantial portion of Plaintiffs' packaging for a Government-drafted anti-tobacco message . . . as well as other mandated information."  As a result of the mandated warnings and information, the companies claim that "any trademarks or other imagery used by [plaintiffs] on cigarette packaging must be dramatically reduced in size and relegated to the bottom half of the packaging," leaving "only a small portion of the least visible part of Plaintiffs' packaging . . . available to Plaintiffs to communicate truthful information to adult consumers."  Plaintiffs seek an injunction prohibiting enforcement of the new warnings requirements.  In January, the district court rejected the companies' arguments and ruled that the new warnings requirements are sufficiently tailored to advance the government's substantial interest in curbing tobacco use by minors.  The case is set for oral argument before a three-judge panel of the Sixth Circuit on July 27.

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