WASHINGTON, Nov 7 (Reuters)(Correction) - A federal judge
on Monday blocked a U.S. rule requiring tobacco companies to
display graphic images on cigarette packs, such as a man
exhaling cigarette smoke through a hole in his throat.
U.S. District Judge Richard Leon sided with tobacco
companies and granted a temporary injunction, saying they would
likely prevail in their lawsuit challenging U.S. health
regulators' rule as unconstitutional because it compels speech
in violation of the First Amendment.
In the first change in U.S. cigarette warning labels in 25
years, the Food and Drug Administration in June released nine
new warnings to go into effect in September of 2012.
Covering the top half of the front and back of cigarette
packs and 20 percent of printed advertisements, they must
contain color graphics depicting the harmful health
consequences of smoking, including diseased lungs, dead bodies
and rotting teeth.
The FDA was instructed by Congress to issue the new
regulations as part of 2009 legislation making the agency
responsible for regulating tobacco products.
"The sheer size and display requirements for the graphic
images are anything but narrowly tailored," Leon wrote in a
29-page opinion.
Just because Congress ordered the size and placement of the
new warnings before charging the FDA with carrying out the
mandate, "doing so does not enable this requirement to somehow
automatically pass constitutional muster," he said.
The content of the images would also not likely survive
constitutional muster because the FDA did not attempt to
narrowly tailor those either, the judge said.
The tobacco industry had asked the court to block the FDA's
new requirements, pending a final decision on their
constitutionality. They argued they needed a quick ruling
because they would have to start in November or December and
spend millions of dollars to comply with the requirements.
Justice Department attorneys had argued that the money was
a small fraction of the companies' net sales and so they would
not suffer irreparable harm without the temporary injunction.
Reynolds American Inc's R.J. Reynolds unit, Lorillard Inc,
Liggett Group LLC and Commonwealth Brands Inc, owned by
Britain's Imperial Tobacco Group Plc sued the FDA in August
over the graphic labels.
An FDA spokeswoman said the agency does not comment on
proposed, pending or ongoing litigation. Representatives for
Altria, Reynolds American and Lorillard could not immediately
be reached for comment.
The case is R.J Reynolds Tobacco Co et al v. U.S. Food and
Drug Administration et al, U.S. District Court for the District
of Columbia, No. 11-cv-1482.
For R.J. Reynolds: Noel Francisco of Jones Day.
For Lorillard Tobacco Company: Floyd Abrams of Cahill
Gordon & Reindel and Patrcia Barald of Covington & Burling.
For Commonwealth Brands: Phllip Perry of Latham & Watkins.
For Liggett Group: Jonathan Hacker of O'Melveny & Myers
For the FDA: William Schultz, Acting General Counsel of the
FDA and Tony West, Assistant Attorney General.
(Reporting by Alina Selyukh and Jeremy Pelofsky; Additional
reporting by Brad Dorfman)
Follow us on Twitter: @ReutersLegal
(An earlier version of this story misspelled the surname of
Noel Francisco)
Follow us on Twitter: @ReutersLegal