A U.S. law requires large graphic warnings on cigarette packages and advertising does not violate free speech rights of tobacco companies, a federal appeals court ruled on Monday.
Cigarettes sued the manufacturers to stop the U.S. Food and Drug Administration new labeling and advertising requirements under rule violated their First Amendment right to communicate with adult consumers of tobacco.
But the Cincinnati-based U.S. Court of Appeals for the 6th circuit has left most of the new regulatory framework of the FDA, including the requirement that tobacco companies are the big picture warnings on cigarette packs.
The decision comes on the heels of the Washington, DC, the ruling judge in the different but related case, has rejected demands by the FDA and, it seems, created a clash over the constitutionality of the rules of FDA.
Floyd Abrams, a lawyer Lorillard, said the difference in tone in the two actions and said the 6 th circuit case, the case of Washington, or both, is likely to end up in the U.S. Supreme Court.
The difference in these two cases is that the FDA did not provide concrete images, when the company filed a lawsuit six Circuit. While the lawsuit focuses on Washington’s image, the appellate court considered the broader question of the normative power of FDA.
“There can be no doubt that the government has a substantial interest in preventing underage smoking and warning the population about the dangers of using tobacco products,” Judge Eric Clay wrote for the three-judge panel of the Sixth Circuit.
Congress passed a law in 2009 and ordered the FDA to take specific warning label rules. The labels must be in color, should include the top 50 percent before a pack of cigarettes and rear panels, and should cover the top 20 percent of print advertising.
After the tobacco companies, including RJ Reynolds Tobacco Co and Lorillard Inc, Lorillard Tobacco Co, sued to block the law, FDA presented the nine images to go on cigarette packs, including graphic images of corpses, diseased lungs and rotting teeth. Companies blame the government forcing them to spread anti-smoking message in order to embarrass and stigmatize already informed consumers.
Two judges of the majority of the Court of Appeal panel disagreed with the companies on the label claim, arguing that the fact that the specific images can cause an aversion does the requirement of the Constitution. Most say that it was just a decision on the constitutionality of the law on its face, rather than specific images that FDA imposed after the lawsuit was filed.
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Judge Clay, who wrote the main opinion upholding most of the FDA rules, objected, however, the ruling on the graphic label. He called the rules “is simply unprecedented.” Although the Government may require the manufacturer to provide truthful information, “it is less clearly permissible for the government, just to scare the consumer or otherwise attempt to manipulate the emotions of the consumer roughly, as he seeks to do here,” Clay wrote.
February 29, DC, District Judge Richard Leon ruled that the FDA violated the images free speech rights of tobacco companies. He found that warning labels were too high and that the government has a lot of other tools at its disposal to prevent smoking, such as raising taxes on cigarettes, including simple factual information on the label, not the horrible images.
The Obama administration appealed that ruling to the U.S. Court of Appeals for the District of Columbia on March 5.
Lorillard’s lawyer says Abrams appeals court on Monday the decision does not necessarily conflict with the decision of Leon.
“The court made it clear that focuses on the law as written, rather than on its implementation,” said Abrams.
Ministry of Justice did not immediately provide comment.
6th circuit is also supported by other rules of FDA, including restrictions on the marketing of “light” cigarettes, the distribution of free samples of tobacco sponsorship of events. The court overturned a rule prohibiting the use of color and graphics in advertising.
“We are pleased the 6th Circuit Court of Appeals upheld the continued use of colors and images in our advertising,” said the spokesman for RJ Reynolds, Brian hatchel.
