It appears that the Federal Drug Administration’s mandate that forces cigarette companies to affix graphic warning labels to their products has finally been defeated.
On August 24, the United States Court of Appeals for the District of Columbia ruled 2 to 1 that the FDA’s graphic labels violated cigarette makers’ free speech rights. 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 a dead smoker lying on an autopsy table with stitches in his chest and the words “Smoking can kill you” underneath.
While these warning labels would only apply 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 ones struck down in this ruling. And, for a short time in 2010, New York City forced tobacconists to post similar graphic warnings at the point of sale and in their shops—a judge later struck down the requirement.
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 2011, but the mandate had not gone into effect because a judge blocked it this past March.
Judge Janice Rogers Brown wrote in her court that "This case raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest—in this case, by making 'every single pack of cigarettes in the country mini billboard' for the government's anti-smoking message.
The only way the FDA’s graphic warning labels mandate can become legally binding is if the Supreme Court opts to take the case, which is a very real possibility. This is because the U.S. Court of Appeals for the Sixth Circuit, located in Cincinnati, Ohio, ruled in March on a separate case that the FDA-mandated warning labels are constitutional. The Supreme Court justices often step in when circuit courts are split.
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