District Court Strikes Down Graphic Tobacco Labeling Requirement

The case is R.J. Reynolds Tobacco Co. v. United States FDA (D.D.C. Feb. 29); the opinion grants plaintiffs summary judgment, for much the same reasons given in November, when the court issued a preliminary injunction.

The FDA had mandated that “the top 50% of the front and back panels of every cigarette package” must include “color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso; a woman weeping uncontrollably; … a man wearing a t-shirt that features a ‘no smoking’ symbol and the words ‘I QUIT’; … [and] a stylized cartoon … of a premature baby in an incubator.” R.J. Reynolds challenged this as an unconstitutional speech compulsion. And Supreme Court precedents had held that the government generally may not compel people or organizations to convey government-mandated speech, but had provided an exception for some speech on commercial advertising or labeling.

But the court in R.J. Reynolds concluded that this exception to the ban on compelled speech is limited to “purely factual and uncontroversial disclosures” “designed to protect the consumer from confusion or deception, [or] to increase consumer awareness of … risks.” The graphics here, the court concluded, didn’t fall within this exception, but were instead advocacy “crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”