In a new motion (PDF) filed today in Washington federal court, the cigarette manufacturers suing the Food and Drug Administration over new graphic label requirements hinted that they already have their sights set on the Supreme Court.
On Nov. 29, the agency appealed U.S. District Judge Richard Leon's order granting a preliminary injunction to delay enforcement of the rules. The cigarette companies are now asking Leon to speed up his review of pending cross-motions for summary judgment for the sake of "judicial economy."
The losing side on summary judgment is likely to appeal, the companies wrote, so it would be more efficient to get both appeals on the appeals court’s docket at the same time. That way, they wrote, the appellate judges could see how Leon ruled on the merits of the case and also have an opportunity to consolidate the appeals.
“Perhaps most importantly,” they added, “resolution of the merits of this dispute would provide the Court of Appeals and, potentially, the Supreme Court, with a clean vehicle to address the merits of Plaintiffs’ challenge to the new graphic warnings.”
Under the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA created nine new written warnings that feature graphic color pictures, including a side-by-side comparison of diseased and non-diseased lungs, a man with a hole in his throat and a body on an autopsy table. The new regulations were set to go into effect in September 2012.
The manufacturers – five of the largest cigarette companies in the United States – have accused the administration of running afoul of the First Amendment by forcing companies to take up the government’s anti-smoking message. The labels cross the line from fact-based warnings to unconstitutional compelled speech, they have argued.
On Nov. 7, U.S. District Judge Richard Leon gave a partial win to the cigarette companies, ordering a preliminary injunction to delay enforcement of the new regulations until 15 months after the case is resolved. Leon found that the tobacco companies were likely to succeed on the merits.