If you haven't already seen the images that the Food and
Drug Administration will require tobacco companies to include
on cigarette packages, take a look. They're disgusting: rotting
teeth and gums, blackened lungs, a patient with a Frankenstein
scar running down his chest. Congress's 2009 Smoking Prevention
and Tobacco Control Act, the first update of cigarette warning
labels since 1984, was supposed to give the FDA the power to
depict the health consequences of smoking with color graphics.
These labels, approved in June after a two-year rule-making
process, sure do that.
In August, a group of tobacco companies claimed that the
new labels violate the industry's constitutional rights. In a
41-page complaint filed in Washington, D.C., federal district
court, the tobacco companies argued that the labels are an
unprecedented attempt to force them to serve as mouthpieces for
the government's anti-smoking message. "This is precisely the
type of controlled speech that the First Amendment prohibits,"
the complaint claimed. "While the government may require
plaintiffs to provide purely factual and uncontroversial
information to inform consumers about the risks of tobacco
products, it may not require [tobacco companies] to advocate
against the purchase of their own lawful products."
The complaint asks for a declaratory judgment that the
tobacco labels are unconstitutional and a preliminary
injunction blocking the FDA from implementing the new labeling
rules.
But as the FDA pointed out in a 55-page response Friday,
there's a bit of a roadblock in the industry's way. To win a
preliminary injunction, the tobacco companies have to show that
they're likely to succeed on the merits of their First
Amendment argument. That will be very tough, the FDA argued,
since they've already lost that case. In 2009, three of the
plaintiffs in the declaratory judgment suit were part of a
different coalition of tobacco companies that sued the FDA in
Bowling Green, Ky., federal court, raising First and Fifth
Amendment challenges to the Tobacco Control Act. Ruling on
cross-motions for summary judgment (after denying Big Tobacco's
preliminary injunction bid), Judge Joseph McKinley Jr., upheld
the law's constitutionality in a Jan. 10, 2010 ruling. (Both
sides appealed aspects of the ruling; the U.S. Court of Appeals
for the Sixth Circuit heard the appeal in July.)
The FDA argued that the new suit is simply a reboot of the
old, failed case. "Plaintiffs' new suit reprises arguments
already considered and rejected in [the previous suit]," the
filing said.
The tobacco companies-which represented by a crackerjack
lineup of law firms, including Jones Day; Cahill Gordon &
Reindel; Latham & Watkins; O'Melveny & Myers; and Covington &
Burling-claim that the new suit is different from the old one
because when they first sued, the FDA hadn't settled on
precisely which images tobacco products would carry. The FDA
has countered that the industry considers any color graphic to
be a violation of its First Amendment rights-an issue Judge
McKinley has already decided.
D.C. judge Richard Leon will have to sort the whole thing
out. I'll let you know when he does.
(Reporting by Alison Frankel)
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