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Court Strikes Graphic Cigarette Labels

A federal appeals court on Friday struck down requirements for large graphic warning labels on cigarette packages, saying the government didn't provide evidence that the labels would bring down smoking rates.

The U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 decision, said federal regulators fell short of meeting constitutional requirements for justifying the labeling rules. "The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal," Judge Janice Rogers Brown wrote in the majority opinion.

The Food and Drug Administration "failed to present any data—much less the substantial evidence...showing that enacting their proposed graphic warnings will accomplish the agency's stated objective of reducing smoking rates," she added.

"This is a major victory," said Floyd Abrams, an attorney at Cahill Gordon & Reindel LLP who represented Lorillard Inc., one of the tobacco companies involved in the case. "It's a significant First Amendment ruling."

A Justice Department spokesman said the agency had no immediate comment. "We are still reviewing the ruling," he said. The FDA declined to comment, citing agency policy against discussing court cases.

Some legal observers said they expect the matter eventually to be decided by the U.S. Supreme Court. In March, a different federal appeals court largely upheld the government's authority to regulate tobacco products, including the requirements for graphic labels, creating the type of legal conflict in the federal court system that can lead to high court review. However, the court rulings involved different issues, with one court looking at the overall tobacco law while Friday's decision involved the specific graphic warning labels.

The FDA had proposed requiring tobacco makers to place stronger warnings and graphic pictures on the top half of cigarette packages starting in September, although a lower court had put the implementation date for the warnings on hold.

The images include pictures of diseased lungs, a body on an autopsy table and a man blowing cigarette smoke out of a hole in his neck, which would be combined with stronger wording such as "smoking can kill you." Current labels warning of smoking's dangers are contained in a small box with black-and-white text. The FDA was given the authority to regulate tobacco products as part of a 2009 law passed by Congress. Part of that law called for the new graphic warnings.

Several tobacco companies, including Lorillard and Reynolds American Inc., sued the FDA in federal court, arguing the graphic-images requirement violated the First Amendment's free-speech clause. The industry has agreed to stronger text warnings on the sides of cigarette packages.

Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said the company was pleased the court agreed "that consumers can and should be fully informed about the risks of tobacco use in a manner consistent with the U.S. Constitution."

Altria Group Inc., the parent of Philip Morris USA, isn't a party to lawsuits involving the federal tobacco law but the company had expressed concerns about the graphic warning requirements.

One of the three judges on the D.C. Appeals Court, Judith W. Rogers, dissented from the ruling. "Nothing in the Supreme Court's commercial speech precedent would restrict the government to conveying these risks in ways that have already proved ineffective or would prohibit the government from employing the communication tools tobacco companies have wielded to great effect over the years," she wrote.

Antismoking groups expressed disappointment with the ruling and urged the Justice Department to appeal. "Studies around the world and evidence presented to the FDA also show that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit," said Matthew L. Myers, president of Campaign for Tobacco-Free Kids.


Jennifer Corbett Dooren, The Wall Street Journal. August 24, 2012

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