Tobacco companies may be gainning an advantage in the legal battle against the federal government about a new law that requires graphic warning labels on cigarette packaging.
A U.S. district court judge said in a hearing on Wednesday that a federal rule that requires large graphic health warnings on cigarette packs may violate the free speech rights of tobacco companies.
Five cigarette makers including R. J. Reynolds Tobacco Co. and Lorillard Tobacco Co. are suing to overturn the Food and Drug Administration rule requiring shocking images of potential consequences of tobacco use, like diseased lungs, rotting teeth or sick children on cigarette packs.
In 2009 the FDA adopted the Family Smoking Prevention and Tobacco Control Act and required color warning labels big enough to cover the top half of a cigarette pack’s front and back side, as well as the top 20 percent of print advertisements, and for the first time the law gave the health agency expansive powers over cigarette and tobacco companies.
Attorneys representing the tobacco companies said that the government is using “threats and fear” to motivate people to stop buying products that are legally sold.
Judge Richard Leon, who in November blocked a Sept.22 deadline for tobacco companies to begin displaying graphic images on their packs, said that the FDA’s rule may “unconstitutionally compel speech,” but the government appealed.
Lorillard, R.J. Reynolds, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. sued the FDA in August and claimed that the administration’s rules for cigarette packages, cartons and advertising violate the First Amendment, and would cost the companies a total of about $20 million to meet the 2012 deadline.
Judge Leon agreed with tobacco makers and said that the government dialed to show how graphic images met legal precedents requiring federal imposed labeling to be factual and uncontroversial.
Leon said that Congress ignored legal precedents protecting commercial speech from government control on Wednesday, casting more doubt on the validity of the rule.
"There's nothing on the record to suggest that Congress gave any clear and thoughtful analysis on the First Amendment implications of this," the judge said.
Judge Leon also said on Wednesday that he will issue his final ruling before April 10, before U.S. Court of Appeals in Washington hears arguments on his earlier decision.
The judge had taken up the case in September and in November he had indicated that tobacco companies would most likely win their challenge.
Judge Leon may very well maintain his November position on the label lawsuit in the final ruling,
"It sounds like they are headed to place where you have to watch a 10-minute video before you can even buy a pack of cigarettes," Judge Leon commented during the hour-long meeting on Wednesday, according to USA Today.