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Court Rejects FDA Appeal

Andrew Nagy
Posted: September 4, 2012

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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Comments   7 comment(s)

Tony S. — Toronto, ON, Canada,  —  September 5, 2012 10:52pm ET

This is surprising, and also unfortunate. Cigarette smoking is extremely unhealthy, and the whole society pays the price for diseases induced by cigarette smoking. If I sound shrill saying this, I should of course qualify my statement by saying that cigar smoking is, clearly, not nearly as dangerous, and not addictive compared to cigarettes.


Christian September 6, 2012 6:54pm ET

People already know the effects of smoking, there is no need to get the government involved any further period.


Bruce Parrish — Westminster, MD, USA,  —  September 7, 2012 11:40am ET

Tony S. - So, should bottles of beer show graphic pictures as well, since abuse of the product causes cirrhosis of the liver ?? And not to mention the car crashes caused by drunk drivers. Maybe we should have pictures of car crashes on our bottles as well.

And while we're at it, since fast food causes obesity, maybe all cheeseburger wrappers should show either someone suffering the effects of diabetes (amputation) or a heart attack victim.

Seriously, any one with any sense at all realizes the risk of their behavior. We don't need graphic images on the product to remind us of that.


Thomas Dahlgren — Johnson City, TN, U,  —  September 7, 2012 2:57pm ET

Tony S. is clearly one of those wise minded persons who would never engage in a behavior so obviously dangerous and harmful as cigarette smoking. He's simply far to bright to make that kind of mistake. No, he knows that nobody would ever foresee harm coming from other forms of tobacco consumption.

He's also apparently the sort of fellow who doesn't mind when the government decides to trample upon the rights of others. So long as it does not directly impact him and his eternally wise ways.

Cigars forever remaining beyond the reach of an ever expanding nanny state leviathan in Tony S's world.

We should all be as bright and farsighted as the Tony S's of the world.


chris olivo — washingtonville, new york, usa,  —  September 10, 2012 12:48pm ET

@Thomas Dahlgren... You couldnt have said it any better, people dont care if it doesnt effect them directly and its just sad that some can be so blind.


Tony S. — Toronto, ON, Canada,  —  September 18, 2012 8:52pm ET

Wow, some strong knee-jerk reactions here. Oh well, I am dealing with Americans, after all.


Tony S. — Toronto, ON, Canada,  —  September 18, 2012 8:56pm ET

Oh, and I should also add that the rather curious thing about these knee-jerk responses is that they are authored by people who live in a country that prohibits access to Cuban cigars. You know, because they're big, bad commies. Hilarious.


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