Attorneys for five of the largest cigarette manufacturers in the country sparred with the government today in Washington federal court over the point at which factual health warnings on cigarette packages become advocacy.
The tobacco companies, which filed suit against the U.S. Food and Drug Administration on Aug. 16, want a preliminary injunction barring the agency from enforcing regulations requiring new graphic warning labels for the duration of the case and then for 15 months after it ends.
The agency has argued that the companies haven’t shown that they would suffer any real harm, claiming that any cost of preparing for the new regulations, which go into effect in September 2012, would be miniscule compared to the budgets these companies work with.
U.S. District Judge Richard Leon heard oral arguments on Wednesday, focusing much of his time on pressing the government to define where the line is drawn between fact-based warnings and advocacy. Leon also noted that regardless of how he ruled, he expected that the losing side would appeal.
At issue are nine new warning labels that pair text with images depicting the health risks of smoking. The labels include a phone number for a quitting hotline and are accompanied by color pictures, such as a side-by-side comparison of diseased and non-diseased lungs and a body on an autopsy table.
The tobacco companies have claimed that the new requirements violate the First Amendment by forcing the companies to take up the government’s anti-smoking campaign. Unlike traditional warning labels that offer factual, uncontroversial statements, the companies argue that the images are designed solely to shock.
Jones Day partner Noel Francisco and Floyd Abrams of Cahill, Gordon & Reindel argued this morning for the tobacco companies. The companies are likely to win the case on the merits, Francisco said, because in order to compel speech, the government has to show that the images are pure fact, or else prove that the new labels met a "strict scrutiny" test. He argued that the government could not do either.
The government can compel companies to put health warnings on their products, Francisco said, but “what it can’t do is force manufacturers of a lawful product to serve as the government’s unwilling mouthpiece.”
Leon asked Francisco whether any graphic label would pass a First Amendment test. Francisco offered that a graph showing data on the health risks of smoking would be an alternative option. The images, he said, “ignore the facts and they ignore nuance.” He likened the decision to a situation where the agency put large graphic labels on McDonald’s Happy Meals in order to combat childhood obesity.
Justice Department attorney Mark Stern countered that while the images may be shocking or grotesque, that doesn’t mean they don’t accurately convey the real health risks of smoking. A picture of a diseased lung might be disturbing, he said, but the agency chose that image to back up health warnings that cigarette smoking can cause lung disease and death.
“These are the effects,” Stern told Leon, adding that the images are meant to reinforce the written warnings.
Leon pressed Stern several times to define when these types of warnings would become advocacy. Stern said that an example might be if the government told companies to display warnings that suggest a consequence that doesn’t actually happen.
On a more practical front, the companies have said that a preliminary injunction is needed because they will need to spend millions of dollars in the coming months to prepare. Francisco argued that because the agency would be immune against having to pay any lost costs even if the tobacco companies won, the injury could not be remedied. Stern countered that the tobacco companies failed to show that they would suffer from the type of “irreparable harm” needed to get a preliminary injunction.
Francisco added that in a First Amendment case, the companies also could not be compensated for any loss of their free speech rights.
The plaintiffs in the case are R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company Inc.