Judge: FDA tobacco warnings may be unconstitutional

J. Arthur Bloom Deputy Editor
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The FDA’s new graphic warning labels for tobacco products showing diseased lungs, rotten teeth and dead bodies may violate the First Amendment, a federal judge has ruled.

U.S. District Judge Richard Leon granted a request from five tobacco companies to suspend the implementation of the FDA warnings pending a ruling, saying the labels may “unconstitutionally compel speech.”

“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for government advocacy can be frustratingly blurry,” Leon wrote in his ruling, “here — where these emotion-provoking images are coupled with text extolling consumers to call the phone number ‘1-800-QUIT[-NOW]’ — the line seems quite clear.”

The regulation would require half of the front and back of cigarette packs to be devoted to the ads, which Leon said appeared to be, “mini-billboards … for [the FDA’s] obvious anti-smoking agenda.”

The Family Smoking Prevention and Tobacco Control Act, signed into law by President Obama in 2009, gave the FDA broad powers to regulate the tobacco industry. Health and Human Services Secretary Kathleen Sebelius rolled out the new warnings during a White House briefing in June. They were supposed to take effect this September.

Anti-smoking groups have objected to Leon’s ruling.

“It is obvious why tobacco companies filed this suit. They continue to spend billions of dollars to play down the health risks of smoking and glamorize tobacco use. These new warnings will tell the truth about how deadly and unglamorous cigarette smoking truly is,” Campaign for Tobacco-Free Kids president Matthew W. Meyers said in a statement.

Brian Hatchell, a spokesman for Reynolds American Inc., parent company of RJ Reynolds, told Bloomberg, “We’re pleased with the judge’s ruling and look forward to the court’s final resolution of the case.”

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