Cigarette Graphic Warning Rule Violates Companies’ Speech Rights

The US government can’t force R.J. Reynolds Tobacco Co. and other cigarette companies to add large, graphic warnings to their packages because the rule violates their free speech rights, a federal judge in Texas said.

The rule isn’t narrowly enough tailored to serve the government’s interest in promoting public health, the court said, striking down the Food and Drug Administration’s second attempt to fashion graphic warnings under a 2009 law.

The Food and Drug Administration finalized the rule at issue in March 2020. Tobacco manufacturers and retailers bought a constitutional challenge the following month.

Eleven messages were required to appear on cigarette packaging and advertising displays with equal frequency on a rotating basis. They included a picture of a man with a large surgical scar and a warning that smoking can cause heart disease, a picture of a distressed woman with a large lump in the neck and text saying that smoking causes head and neck cancer, and a picture of a feet with amputated toes and a warning saying that smoking reduces blood flow to the limbs.

The mandated warnings don’t qualify for relatively lenient First Amendment scrutiny because they aren’t purely factual and uncontroversial, Judge J. Campbell Barker of the US District Court for the Eastern District of Texas said Wednesday.

Rather, the imagery is “provocative” and subject to different interpretations, the court said.

The labels don’t survive scrutiny under the more typical test for commercial speech because they aren’t narrowly tailored to serve the government’s stated public health interest, the court said, vacating the rule.

Rather than imposing warnings that cover more than half of a cigarette package’s face, the government could take advantage of other strategies such as increasing funding for anti-smoking ads and health education, and increasing anti-smoking resources in its own communications, the court said.

Such a public-information campaign not only is less burdensome to private speech but also offers the ability to target particular groups, such as youths, with different messages, the court said.

Nor did the FDA test the efficacy of smaller or differently placed warnings, the court said.

A previous FDA rule mandating graphic warnings was struck down by the US Court of Appeals for the D.C. Circuit.

Michael Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Jones Day represented R.J. Reynolds, Santa Fe Natural Tobacco Co., Neocom Inc., Rangila Enterprises Inc., Rangila LLC, Sahil Ismail Inc., and Is Like You Inc. O’Melveny & Myers LLP and Kasowitz Benson Torres LLP represented Liggett Group LLC. Latham & Watkins LLP represented ITG Brands.

The Department of Justice represented the FDA and the Department of Health and Human Services.

The case is R.J. Reynolds Tobacco Co. v. FDA, E.D. Tex., No. 6:20-cv-00176, 12/7/22.