Thursday, March 1, 2012

Federal judge: New FDA cigarette health warnings violate the First Amendment

New FDA warning labels held unconstitutional

Yesterday, U.S. District Judge Richard Leon in Washington  granted summary judgment  to five of the country’s largest tobacco manufacturers who claimed that the new FDA mandatory graphic health warnings “violate the First Amendment by unconstitutionally compelling speech."  R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, No. 11-1482 (D.D.C.). Plaintiffs claimed that they should not carry the burden of promoting government's anti-tobacco advocacy.

While narrow exceptions to the First Amendment allow the government to compel certain "purely factual and uncontroversial” disclosures to protect consumers, the new labels did not withstand the constitutional scrutiny because they are “neither factual nor accurate.” For example, there is no evidence that smoking leads to autopsy.

No evidence that smoking leads to autopsy

Judge Leon noted that the federal government could have considered less “gruesome images designed to disgust the consumer” which would be less burdensome for tobacco companies, yet would still allow the Government to educate the consumers on the health risks of smoking. Other alternatives could have included smaller labels and fact-based graphics.

The new FDA health warning labels were scheduled to go into effect in September, 2012. An appeal is expected.