* Appeals court OKs FDA rule requiring graphic warnings
* Decision conflicts with district court ruling
* Cases could end up before U.S. Supreme Court
By Terry Baynes
March 19 A federal law requiring large graphic
health warnings on cigarette packaging and advertising does not
violate the free speech rights of tobacco companies, a federal
appeals court ruled on Monday.
Cigarette makers had sued to stop the U.S. Food and Drug
Administration's new labeling and advertising requirements on
grounds the rules violated their First Amendment right to
communicate with adult tobacco consumers.
But the Cincinnati-based U.S. Court of Appeals for the 6th
Circuit upheld the bulk of the FDA'S new regulatory framework,
including the new graphic warnings. The ruling in large part
affirmed a Kentucky federal judge's 2010 decision in the case.
"There can be no doubt that the government has a significant
interest in preventing juvenile smoking and in warning the
general public about the harms associated with the use of
tobacco products," Judge Eric Clay wrote for the three-judge
appeals court panel.
Congress passed the law in 2009 and ordered the FDA to adopt
specific warning-label regulations. The labels must be in color,
must cover the top 50 percent of a cigarette pack's front and
back panels, and must cover the top 20 percent of print
After tobacco companies, including R.J. Reynolds Tobacco Co
and Lorillard Tobacco Co, sued to block the law,
the FDA unveiled nine images to go on cigarette packs, including
graphic pictures of dead bodies, diseased lungs and rotting
teeth. The companies accused the government of forcing them to
disseminate an anti-smoking message in order to stigmatize and
embarrass already-informed consumers.
The appeals court panel's two-judge majority disagreed with
the companies on the label requirement, finding that the fact
that the specific images might trigger disgust does not make the
requirement unconstitutional. The majority did note that it was
only addressing the constitutionality of the statute on its
face, and not the specific images that the FDA introduced after
the suit was filed.
Judge Clay, who wrote the main opinion upholding most of the
FDA regulations, dissented, however, on the graphic label
ruling. He called the rule "simply unprecedented." While the
government can require a product manufacturer to provide
truthful information, "it is less clearly permissible for the
government to simply frighten consumers or to otherwise attempt
to flagrantly manipulate the emotions of consumers as it seeks
to do here," Clay wrote.
In a separate case, a district judge in Washington, D.C.,
ruled on Feb. 29 that the graphic label requirement was a
violation of the tobacco companies' free-speech rights. He found
that the warning labels were too big 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. The Obama
administration appealed that ruling with the U.S. Court of
Appeals for the District of Columbia Circuit on March 5.
Floyd Abrams, a lawyer for Lorillard, said the 6th Circuit
decision does not necessarily conflict with the D.C. district
court decision, which addressed the nine FDA images.
"The court made clear it was focusing on the statute as
written, as opposed to the implementation of it," Abrams said.
However, he noted a difference in tone between the two rulings.
The 6th Circuit majority said it disagreed with the D.C. court's
premise that a disclosure is unconstitutional if it triggers a
Abrams said the 6th Circuit case, the D.C. case or both
would likely end up in the U.S. Supreme Court.
The Department of Justice did not immediately provide
The 6th Circuit also upheld other FDA regulations, including
restrictions on the marketing of "light" cigarettes, on the
distribution of free tobacco samples, and event sponsorship. The
court struck down a rule barring the use of color and graphics
in tobacco advertising.
"We are pleased the 6th Circuit Court of Appeal upheld the
continued use of colors and imagery in our advertisements," said
R.J. Reynolds spokesman Bryan Hatchell.