A federal judge in Washington granted summary judgment (PDF) this afternoon to five tobacco companies suing the U.S. Food and Drug Administration over new regulations requiring graphic labels on cigarette packages.
U.S. District Judge Richard Leon wrote that the "mandatory graphic images violate the First Amendment by unconstitutionally compelling speech." He added that while there are exceptions to the First Amendment that allow the government to require certain disclosures from businesses to protect consumers, the labels in question "are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard."
The regulations, which were schedule to go into effect in September, would require tobacco companies to use nine new labels on their packaging that included both text and images. The labels were designed to depict the risks associated with smoking – an image of a diseased lung compared with a non-diseased lung, or a man with a hole in his throat, for example.
Five of the country’s largest tobacco manufacturers – R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc. – sued the agency in U.S. District Court for the District of Columbia in August, arguing that the new labels crossed the line from standard warnings to unconstitutionally forced speech promoting “governmental anti-smoking advocacy.”
Today’s ruling came as little surprise, as Leon had indicated he thought the plaintiffs were likely to succeed on the merits when he granted their request for a preliminary injunction in November. The agency appealed that ruling to the U.S. Court of Appeals for the D.C. Circuit, and Leon has previously said he expected whatever ruling he made on summary judgment to be appealed as well.
An FDA spokeswoman did not immediately return a request for comment. Lead attorneys for the manufacturers, Floyd Abrams of New York’s Cahill Gordon & Reindel and Noel Francisco of Jones Day in Washington, also could not immediately be reached.
Leon wrote in today’s opinion that the labels in question “are neither factual nor accurate.” He cited one of the labels that shows a body on an autopsy table as an example. “For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking,” he wrote. “Indeed, it makes no attempt to do so.”
“Put simply, the Government fails to convey any factual information supported by evidence about the actual health consequences of smoking through its use of these graphic images," Leon wrote.
Leon added that it was unfortunate that the federal government hadn’t considered other alternatives to the labels requirement “that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech.” Examples included shrinking the size of the proposed labels, picking graphics based in fact “rather than gruesome images designed to disgust the consumer,” increasing cigarette taxes or improving efforts to stop sales to minors.
“Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech,” Leon wrote.