Judge Blocks New FDA-Mandated Graphic Cigarette Warnings

Andrew Nagy
Posted: November 8, 2011

A federal judge on Monday blocked a Food and Drug Administration requirement that would have forced cigarette makers to affix graphic warning labels to their products beginning next year.

Some of the graphic images the FDA sought to mandate as warnings included a cloud of smoke near a newborn’s face, lips with what appear to be lesions growing on them, and, perhaps the most provocative of all, a dead smoker lying on an autopsy table with stitches in his chest and the words “Smoking can kill you” underneath.

United States District Judge Richard Leon ruled that the images bordered on advocacy and infringed on the tobacco companies’ right to free speech, according to an Associated Press report.

"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking—an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his 29-page opinion.

Three cigarette makers, including a subsidiary of Britain's Imperial Tobacco Group PLC (the parent company of Altadis S.A.) had sued the FDA in August, claiming the new packaging requirements breached their right to free speech.

The FDA’s move on warning labels originated in 2009, only months after the agency was granted control over the U.S. tobacco industry. And while these warning labels would only have applied to cigarettes, people in the cigar industry fear that such regulation could one day be applied to cigars. It’s not without precedent. Cigars sold in Mexico, for example, must carry graphic warnings very similar to the one struck down in this ruling.

While FDA had an immediate impact on the cigarette industry—banning all flavored cigarettes save for menthol, limiting the release of new products, limiting advertising and placing restrictions on the use of words such as "light"—and other tobacco products, the cigar industry remained largely unrestricted.

In 2010, though, the agency publicly declared it intends to regulate premium cigars, too. As a response, the Cigar Rights of America and the International Premium Cigars & Pipe Retailers association have been involved with introducing two bills, S. 1461 and H.R. 1639, that aim to remove the FDA’s jurisdiction over the premium cigar industry.

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Comments 8 comment(s)

C — November 9, 2011 3:34pm ET

Good on the judge who declared this be an infringement on free speech as it is. This is nothing more than an attempt to control what people can purchase. Why aren't there pictures of grossly obese people when you enter a fast food chain? Simply government’s attempt to pick and choose what THEY think is good for us. Very un-American.

C — November 9, 2011 3:34pm ET

ericwalker968 — November 9, 2011 4:26pm ET

Smokeing is bad for you that is ture.
BUT SO IS
Fast Food
Drinking
Drugs
So what if I want to enjoy a cigar I've waited the long years to become age in order to enjoy one again the goverment trying to control what we buy or don't buy

audyaver — November 9, 2011 8:20pm ET

Test Comment

JustoneCoolcat — November 10, 2011 4:27am ET

OK Life is good, right.... not,
Indians, life was good and still is, right
Indians somked, right....
Indians somked tobacco, nothing happen to them. |

Cigars are nothing but pure tobacco, I know
a few Cubians and American Nativas Indians whos still burn. Nothing wrong with them health wise.

F.D.A What are you looking for?

smoke

kent@confidenthair.com.au — November 12, 2011 5:46am ET

Glad to hear the judgement. we have those ridiculous pictures on the cigarette packets here in Australia. Now they have just passed legislation so all packets are to be sold in plain green packs from next December. But the tobacco companies are about take our Government to court for infringement of intilectual property rights, amongst other things. Either the courts will uphold the appeal and the legislation will fail or it will pass, but then I cannot see how our government(australian tax payers) can get out of not paying the tobacco companies compensation each year for the removal of their trade marks from their products.
Anti smokers say this is good but believe me today it is tobacco tomorrow it will be alchol and fast foods. These are already in the sights of minority, activists, groups here.
Welcome to 1950s Communist Russia, sorry 2011 Australia. The difference is getting very difficult to see.

Jason Kayorie — November 13, 2011 5:45pm ET

Up in Canada we've had graphic warning labels on cigars for a few years. I can tell you they've done nothing to stop new smokers from starting nor make old smokers quit. Most people just ignore them, some hurl insults toward the government’s interference for trying to tell them what to do. I’ve even had people request specific "warnings" so that they can add to their collection, said people have even been thrilled when new images are introduced. It's like collecting baseball cards for them. It’s just a waste of time and money, only furthered by the years long legal process.

dave@ci.com.au — November 14, 2011 1:38am ET

Australia has become a bizzare combination of fascist nanny state with regard to protecting its citizens from themselves.

Plain packaging will be even more of a pain in the butt for the retailers who currently have to keep one of their more commonly items out of eyesight in cabinets.

The governments don't have the balls to just come out and ban cigarettes but they have been progressively will make it such that it won't be worth the hassle of selling them.

If the more rabid anti-smoking advocates get their way, us big tough Aussies will need to have a smoking license to go along with our gambling license and our I'm big enough to cross the street by my self license...

The governments, both state and federal, don't have the balls to just come out and ban cigarettes but they have been progressively will make it such that it won't be worth the hassle of selling them.

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