Tobacco Companies Sue FDA, Claim Warning Labels Violate 1st Amendment

Five tobacco companies are suing the Food and Drug Administration over a mandate requiring that, beginning Sept. 2012, larger health warnings be displayed on all U.S. cigarette packaging and advertisements.

Earlier this year, the Food and Drug Administration (FDA) released new mandates for cigarette packaging and advertisements, requiring larger, more prominent warnings about the health effects of cigarette smoking to be displayed starting in September 2012. On Tuesday, five tobacco companies filed suit against the FDA, alleging that the warnings violate the companies’ 1st Amendment rights.

“The primary complaint is that we think it violates the First Amendment for the government to require people who produce a lawful product to essentially urge prospective purchasers not to buy it,” Floyd Abrams, a prominent First Amendment case expert who’s representing the plaintiffs, told CNN.

“The government has [a] lot of power to require warnings, but it doesn’t require half of a cigarette pack to scream out, ‘Don’t buy this product!’” Abrams said. “What is at issue is putting photographs of diseased people on every cigarette pack, include a phone number, and ask people to stop smoking. It’s the direct advocacy to not buy the product, as opposed to a straightforward warning.”

According to the article, the FDA has refused to comment on pending litigation, but the original FDA press release for the nine new images that are supposed to be used on the packaging suggests the agency believes it acted within the scope of its authority: “The Family Smoking Prevention and Tobacco Control Act requires nine new larger and more noticeable textual warning statements to appear on cigarette packages and in cigarette advertisements. It also directs FDA to issue regulations requiring that color graphic images depicting the negative health consequences of smoking accompany the nine new textual warning statements.”

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