Federal Anti-Smoking Activism Dooms FDA’s Proposed New Tobacco Pack Warnings

Cross-posted by Forbes.com at WLF Contributor site

November is only a week old, but it’s already been quite a month for federal court cases involving compelled speech. Decisions in this area certainly are not commonplace, and are even less so where the plaintiffs are businesses. Last week, as we noted in a Legal Pulse post, a federal judge in California imposed an injunction on a San Francisco ordinance which involving warnings about purported health risks of radiation from cell phones.

Today, in a case with an infinitely greater national import and impact, Federal Judge Richard Leon in the District of Columbia granted tobacco companies’ motion for a preliminary injunction against the Food & Drug Administration’s (FDA) plan to impose absurdly graphic image health warnings. WLF filed an amicus brief in the case in support of speech rights.

Judge Leon’s opinion describes federal regulators driven not by an interest in informing consumers, but by a desire to “change [ ] consumer behavior.” FDA offered no scientific evidence that such warnings would advance even this impermissible interest, which is not surprising given that FDA said in the Federal Register notice that the warnings would lead to a 0.212% drop in smoking (statistically equivalent to zero).

Because the doctored, cartoonish images went far beyond offering “purely factual and uncontroversial disclosures,” Judge Leon required the government to prove the rules were narrowly tailored to advance a compelling state interest. He found that (in the words of FDA Commissioner Hamburg) “rebranding our cigarette packs” was not a compelling interest, and that the size of the warnings and the images, by their nature, were not narrowly tailored to advance any state interest.

Judge Leon also determined that the plaintiffs would, but for the injunction, suffer irreparable harm, and that the injunction would not injure the public or the government. Quite to the contrary, he wrote, the public’s interest in the First Amendment would be harmed without an injunction since Congress “did not specifically contemplate the First Amendment implications when formulating its statute.” Thankfully, the judge was highly cognizant of the broader ramifications of Congress’s and FDA’s actions, and the slippery slope that the tobacco warnings insitgate:

[W]hen one considers the logical extension of the Government’s defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public’s interest in preserving its constitutional protections – and, indeed, the Government’s concomitant interest in not violating the constitutional rights of its citizens – are best served by granting injunctive relief at this preliminary stage.”

No doubt FDA will immediately appeal the injunction, setting up a fascinating test for compelled speech in the U.S. Court of Appeals for the D.C. Circuit.

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