On February 12, 2012, a federal trial court ruled that the new graphic warning labels scheduled to be placed on cigarette packages in September 2012 violate tobacco companies' First Amendment rights.

In R.J. Reynolds v. FDA, Judge Richard Leon of the U.S. district court in Washington, D.C., concluded that the FDA’s graphic warnings went beyond factual disclosures, which the government may legally require, and instead forced tobacco manufacturers to adopt the government’s anti-smoking message, which the judge said goes beyond the government’s legal authority.

Background

The 2009 Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”) included a requirement that tobacco manufacturers place warning labels over 50% of the front and back of cigarette packages. Congress left it up to the FDA to determine the content of the labels.

In June 2011, the FDA released the warning label designs. Shortly after that, several large tobacco companies (including R.J. Reynolds, Lorillard, and Commonwealth Brands) sued the FDA, claiming that the labels violate the First Amendment. The companies immediately asked the court to order that the implementation date of the labels be pushed back until 15 months after the case had been fully resolved.

The court’s ruling

The court held that the nine warning labels designed by the FDA—which include images of a simulated cadaver, a cartoon drawing of a baby in a cloud of smoke, and a photo of a blackened lung, among others—go beyond simple factual warnings and are a form of advocacy imposed by the government. The court decided that because the warning labels take up so much of the package, and because they involve images that do more than convey dispassionate facts, the labels violate the First Amendment.

The court also ruled that the cigarette manufacturers should not be required to begin to place the labels on packages until the case has a final resolution.

Impact of the ruling and next steps

This ruling contradicts a decision by the Sixth Circuit Court of Appeals. In Discount Tobacco & Lottery v. United States, the Sixth Circuit held in March 2012 that the Tobacco Control Act’s cigarette package warning label requirement did not violate the First Amendment. (For more information about that case, see this FAQ.)

The FDA appealed Judge Leon’s decision to put the warning label requirement on holdthis ruling, and arguments were held April 10, 2012 at the DC Circuit Court. If the DC court reaches a different conclusion than the Sixth Circuit, the question whether the label requirement violates the First Amendment may well be decided by the U.S. Supreme Court.

For more detailed information, contact our staff attorneys.