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Federal Judge Finds Proposed Graphic Cigarette Warning Labels Violate Free Speech

Since November 2010 I've been following here and here and here the effort of the Food and Drug Administration to require nine new, graphic warning labels on cigarette packs and advertisements. As I previously summarized,

The graphic images include corpses with their chest sewed up, smokers with smoke coming out of a hole in their throatdisgusting-looking lungs that are yellow and diseased from smoking, a close-up of someone with mouth cancer, a suffering baby, and so on. If the purpose of the new warning labels is to convey the message that smoking is dangerous and gnarly, then mission accomplished.

With each of the updates I offered above, however, the FDA's chances of success seemed to diminish a bit further. On Wednesday, the FDA campaign may have died out altogether, as U.S. District Judge Richard Leon granted summary judgment in favor of five tobacco companies who objected that the proposed warnings would violate their free speech rights, cost millions of dollars to print and require them to feature anti-smoking advocacy more prominently than their own brands.

In his opinion issued Feb. 29, Leon wrote that it was clear to him that, and the government had effectively conceded, "the Government's actual purpose is not to inform or educate, but rather to advocate a change in behavior-specifically to encourage smoking cessation and to discourage potential new smokers from starting." 

The FDA told the court that the warnings were part of its effort to carry out the congressional mandate of the "The Family Smoking Prevention and Tobacco Control Act," which requires larger and more visible graphic health warnings on cigarette packages and ads. The FDA argued the court did not have the authority to second-guess Congress even if the congressional mandate violated the First Amendment.

Leon, however, did not agree, finding that there was "no evidence that Congress even considered the First Amendment implications when drafting the Act." He added that

To say the least, implementing a Final Rule consistent with a congressional mandate does not require a Court to hold that the Rule automatically passes constitutional muster. Congress must pass laws, and the FDA must implement final rules, that are consistent with the requirements of the Constitution.

Applying a "strict scrutiny" standard, the court held that the government failed to demonstrate a "compelling interest" nor that the rule was "narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech." Accordingly, the court held, the proposed warnings violated the First Amendment.

Reuters reports that the government is likely to appeal Leon's ruling. The Campaign for Tobacco-Free Kids, a proponent of the warnings, issued a statement that the ruling "ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health."

Posted by Bruce Carton on March 1, 2012 at 04:24 PM | Permalink | Comments (5)

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