Tobacco Health Labels Judged Unconstitutional

A group of tobacco companies that challenged the Food and Drug Administration’s (FDA) 2009 mandate that tobacco products include large, graphic warning labels had its day in court – and it won.

A U.S. District Court judge sided with the tobacco companies, ruling that the FDA regulations requiring large graphic health warnings on cigarette packaging and advertising violate free-speech rights under the U.S. Constitution. Cigarette makers joined together and challenged the FDA’s rule requiring companies to label tobacco products with images of rotting teeth, diseased lungs and other images intended to illustrate the dangers of smoking.

U.S. District Judge Richard Leon commented in the ruling that, “The government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech.”

This isn’t the first fight the tobacco companies have won. Last year, the judge granted a preliminary injunction blocking the new label requirement from taking effect in 2012. The Obama administration has already taken this decision to the U.S. Court of Appeals for the District of Columbia Circuit, and is likely to appeal the new decision as well.

While educating the public about the dangers of smoking “might be compelling, an interest in simply advocating that the public not purchase a legal product is not,” Leonwrote in a 19-page ruling. Further, Leon said the warning labels were too big to pass constitutional muster and that the government has numerous other tools at its disposal to deter smoking such as raising cigarette taxes or including simple factual information on the labels rather than gruesome images.

Congress passed a law in 2009 ordering the FDA to adopt the label regulation, which requires color warning labels big enough to cover the top 50 percent of a cigarette pack’s front and back panels, and the top 20 percent of print advertisements.

Nine new warnings were released by the FDA in June and were set to go into effect in September 2012, marking the first change in U.S.cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General. The new rule required the addition of color warning labels that cover 50 percent of a cigarette pack’s front and back panels. The warning labels would also have to cover the top 20 percent of print advertisements.

Reynolds American Inc.’s R.J. Reynolds unit, Lorillard Inc., Liggett Group, LLC, Commonwealth Brands, Inc., which is owned byBritain’s Imperial Tobacco Group Plc, and Santa Fe Natural Tobacco Co., Inc. challenged the rule, arguing that it would force them to engage in anti-smoking advocacy against their own legal products.

“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,” Justice Leon wrote.

The U.S. Justice Department, which represented the FDA in the case, has not commented on the decision.