FDA to Appeal Order Barring Graphic Cigarette Pack Warnings
December 02, 2011, 11:29 AM ESTBy Andrew Harris
(Updates with defense lawyer’s comment in final paragraph.)
Nov. 29 (Bloomberg) -- The U.S. Food and Drug Administration said it will appeal a judge’s order temporarily blocking rules requiring cigarette makers to put pictures of diseased lungs and other graphic images on packaging.
President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law in June 2009, empowering the FDA to regulate the manufacture and sale of tobacco products. The cigarette makers asked U.S. District Judge Richard Leon in Washington to halt the rules, saying the requirement violates their free-speech rights.
Leon on Nov. 7 found that Lorillard Inc., Reynolds American Inc.’s R.J. Reynolds and three other cigarette makers challenging the measure were likely to prevail on their claims that the “mandatory graphic images unconstitutionally compel speech” and would cause them irreparable harm if not blocked.
The FDA, in a filing today, said it would challenge that decision before the U.S. Court of Appeals for the District of Columbia.
The agency rule includes nine different images -- including a man exhaling smoke from a tracheotomy hole in his throat and a male cadaver with staples in its chest -- to be displayed on cigarette packages on a rotating basis, together with text warnings, the judge said.
First Amendment
Lorillard, R.J. Reynolds, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. sued the FDA in August, claiming the packaging mandate violated the U.S. Constitution’s First Amendment, which protects speech.
The companies said in court papers that it would cost them about $20 million to meet the rule’s Sept. 22, 2012, deadline.
Leon has stayed the effective date of the rule while he reviews the constitutionality of the rule.
Floyd Abrams, an attorney for Greensboro, North Carolina- based Lorillard, said in a phone interview that he wasn’t surprised by the FDA’s notice of appeal.
“We’ll have to wait and see what they have to say” in the appellate brief, Abrams said. He declined to comment further.
The case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-cv-1482, U.S. District Court, District of Columbia (Washington).
--With assistance from Tom Schoenberg in Washington. Editors: Andrew Dunn, Michael Hytha
To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net
To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net
