The Justice Department faces an uphill fight to convince a judge in Washington to uphold as valid rules that would require tobacco companies to include graphic warning labels on cigarette packages and in advertisements.
Judge Richard Leon of U.S. District Court for the District of Columbia earlier issued an injunction blocking enforcement of the federal food and drug rules targeting the marketing and sale of tobacco products. The government has asked a federal appeals court in Washington to strike down Leon’s decision. The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear the dispute in April.
Today, a Justice lawyer, Mark Stern of the Civil Division, tried to convince Leon to support the U.S. Food and Drug Administration rules in light of the judge’s expressed concern about where to draw the line between a warning to consumers and government advocacy. “I’m an open-minded person,” Leon said to Stern.
The judge also expressed dismay that Congress did not assess how the labeling rules could impinge on First Amendment rights.
Stern said it’s no secret the government has an anti-smoking interest. The graphic images, he said, which include a man smoking a cigarette through a tracheotomy hole, are not meant to shock consumers but rather to provide them information, as a reminder, about a product that is inherently dangerous even when used as intended.
Jones Day litigation partner Noel Francisco, arguing for R.J. Reynolds Tobacco Company, said the government is free to tell consumers how to live their lives. But the government, he said, cannot use corporations to facilitate that “paternalistic endeavor.”
The FDA rules, Francisco said, force tobacco companies to serve as the “mouthpiece” for the government’s anti-smoking advocacy campaign.
The rules, Francisco said, are meant to scare consumers and do not provide information to allow smokers to make more informed choices. He argued that the Justice Department has failed to provide evidence that the graphic images would discourage cigarette use. Telling consumers what they already know—that cigarette smoking can have grave consequences—doesn’t lead to behavior modifications, he said. Floyd Abrams, a partner in New York with Cahill Gordon & Reindel, argued for Lorillard Tobacco Company today in court.
The Washington Legal Foundation, which advocates for business interests and less government, said in a friend-of-the-court brief supporting R.J. Reynolds that the group “strongly objects to government efforts to compel individuals or corporations to speak against their will.”
The legal foundation said the warning labels the FDA wants to impose are “ideological messages that have nothing to do with protecting consumers from being misled.”
“No credible evidence exists that the proposed graphic warnings would accomplish the government’s stated goal of reducing smoking rates among adults and children,” WLF attorney Richard Samp said in the brief. “Indeed, FDA’s own regulatory impact analysis concluded that the estimated impact the new warnings will have on smoking rates is ‘not statistically distinguishable from zero.’”
The Association of National Advertisers and the American Advertising Federation, represented by a team in Washington from Davis Wright Tremaine, said in court papers supporting R.J. Reynolds that the “graphic warnings do not just fail to survive First Amendment scrutiny—the effort to control public discourse for fear people might otherwise make bad choices is not even a legitimate purpose.”
“The government has numerous non-regulatory means at its disposal to persuade the public to change its ways, and the United States Supreme Court has emphatically rejected the proposition that the state may regulate private speech ‘in order to tilt public debate in a preferred direction,’” Davis Wright partner Robert Corn-Revere, who attended today’s hearing, said in the brief.
Leon said today in court that he will rule in the dispute before the D.C. Circuit hears oral argument over the validity of the preliminary injunction.