Court blocks new cigarette warnings

A federal judge on Monday blocked a key part of new tobacco regulations that Congress passed with broad bipartisan support.

The court blocked the Food and Drug Administration from requiring cigarette-makers to put large, graphical warning labels on their packaging. The mandate likely violates the tobacco industry’s First Amendment rights, the court said.


Congress voted early in the Obama administration to give the FDA the power to regulate tobacco and tobacco advertising. The law, which garnered bipartisan support in both chambers, required cigarette-makers to place graphic warnings on the top half of the front and back of all cigarette packs.

The warnings include images such as diseased lungs, a diseased mouth and a man exhaling smoke through a hole in his throat. They were to be paired with new, simplified text warnings such as, “Smoking can kill you.”

Five tobacco companies sued over the requirement, saying it encroached on their First Amendment rights. The U.S. District Court for the District of Columbia said they're probably right and blocked the requirement from taking effect.

Although courts have ruled that the freedom of speech includes freedom not to speak, Congress can require certain speech if the speech is factual and designed to give the public important information. Congress also must prove that such requirements serve a “compelling government interest” and are narrowly tailored to achieve that interest.

The tobacco warnings don’t meet any of those standards, Judge Richard Leon said.

He said the warnings are clearly an appeal to emotion, rather than a cold, factual communication. Arguments in the lawsuit clearly suggest that “the Government's actual purpose is not to inform, but rather to advocate a change in consumer behavior,” Leon said in his ruling.

He cited remarks in which FDA Commissioner Margaret Hamburg said the warnings would turn every cigarette pack into a “mini-billboard,” saying the comments prove that the requirement is not narrowly crafted simply to inform consumers about the risks of smoking.

Leon called the FDA’s requirements “a ‘mini-billboard,’ indeed, for its obvious anti-smoking agenda!”

His decision is not a ruling on the merits of the First Amendment claims but rather a response to the tobacco companies’ request to block the new warnings from taking effect until the constitutional questions are settled. Leon blocked the labeling requirements from taking effect until the case reaches that stage because the tobacco companies have a “substantial likelihood” of winning on the merits.