• Court injunction blocks FDA graphic warnings

    This morning, the federal district court in DC issued a preliminary injunction blocking the new FDA cigarette warnings until the full lawsuit can be heard. As I’ve said before, the First Amendment is being wielded to strike down public health regulations in unprecedented ways. This litigation was well known, but most observers weren’t expecting the companies to win on a preliminary injunction.

    The Founding Fathers wouldn’t recognize today’s First Amendment, which was designed to protect religious and political minorities, but is increasingly defending the world’s most powerful corporations.  The First Amendment has become corporate America’s weapon of choice against public health rules.

    Highlights from the 29-page opinion:

    • Judge Leon clearly embraced the tobacco companies’ First Amendment argument:

    the Court concludes that 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 irreparable harm absent injunctive relief pending a judicial review of  the constitutionality of the FDA’s Rule.

    • The court applied strict scrutiny as the constitutional standard, which is much tougher than the standards previously applied to commercial speech. This bodes well for the tobacco companies to win on the merits.
    • Judge Leon was miffed that the FDA didn’t voluntarily agree to delay the effective date of the new labels until after he could rule on the merits.

    The new warnings were to begin for all cigarettes manufactured on or after September 22, 2012. One of the now-blocked warnings:

    h/t to Allan Coukell (Pew) for the pointer

    • Look, on one level the “protection” the government wants to give us in this case seems reasonable–hey, who could fault a government that really wants to protect us from smoking?

      But step back and consider the issue on broader level, and that’s where it goes dodgy. Like with many legal questions, sometimes things that seem clear with regard to specific issues (smoking) become problematic on a broader level (unconstitutionally compelled speech). Should our government really have the right to compel “speech” with this latitude? As appropriate as it seems regarding the specific issue of smoking, I’d rather not enable my government to cross this line so easily.


    • From someone with no background in law – how exactly does this violate the first amendment? I’m not trying to be facetious, I just don’t get it.

      And if it violates the first amendment, why don’t the existing warning labels violate it too?

      • The tobacco companies accepted the warnings previously, from their inception in 1965 to today. They never challenged them in court. In fact, most of the warnings you see, on alcohol bottles, drugs, toys, etc., were developed in cooperation with the affected industries.

        The govt has the right to put factual, noncontroversial warnings on products. A bigger question is, can they take up so much of the manufacturer’s trade dress (packs) with images designed to discourage use. Further, the inclusion of an 800 number to quit smoking seems anything but neutral.

        Even though everyone detests cigarette makers, the issue raises constitutional questions.

    • I should lose my free speech rights if I incorporate. Where do you find that in the Constitution?

    • John,

      Perhaps I should rephrase my question: how does a larger or different warning label amount to a loss of freedom of speech? And how is this different from any existing public health related regulation of how a product can be marketed?

    • Congress could ban cigarettes outright on public health grounds; why isn’t the graphic label a reasonable step short of an outright ban?

      As for the slippery slope argument (@Dan), the easy rule is to limit this to products that clearly kill people.

    • @Kevin:
      Fair enough and I could see myself agreeing with that. But then, in a single bound, you leap over the entire slippery slope to advocate a federal ban on cigarettes. This is why slippery slope arguments exist in the first place.


    • Today here in Australia the Senate is about to approve plain packaging of cigarettes. Packets will be olive in color, have no trademarks on them and have large anti-smoking messages.

      You guys should rise up against tobacco companies, pushers in suits is what they are, scumbags happy to profit from an addictive substance that kills people.

      First amendment use should not be allowed!