Stay ordered against new cigarette warning labels

Jessica M. Karmasek Nov. 8, 2011, 11:00am

WASHINGTON (Legal Newsline) - A federal judge on Monday granted a preliminary injunction against the U.S. Food and Drug Administration in a case that challenged the constitutionality of new, graphic cigarette warning labels.

The case was filed by Lorillard Inc., the third-largest manufacturer of cigarettes in the United States, along with fellow cigarette makers R.J. Reynolds Tobacco Company, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.

The tobacco companies challenged the FDA's new warning labels -- intended for cigarette packs, cartons and advertising -- on First Amendment grounds.

They contend the labels -- which displayed certain graphic images, such as diseased lungs and a cadaver bearing chest staples on an autopsy table -- are an unconstitutional means of forcing them to distribute the government's anti-smoking message.

The companies would have been forced to display the new labels by Sept. 22, 2012.

However, Judge Richard Leon of the U.S. District Court for the District of Columbia, in granting the companies' request for a preliminary injunction, stayed the effective date until 15 months after the final resolution of the litigation.

"This case poses a constitutional challenge to a bold new tact by the Congress, and the FDA, in their obvious and continuing efforts to minimize, if not eradicate, tobacco use in the United States," Leon wrote in his 29-page memorandum opinion.

"Notwithstanding the potential legal and financial ramifications of this challenge, the government, for reasons known only to itself, is unwilling to voluntarily stay the effective date of this rule until the judicial branch can appropriately review the constitutionality of the government's novel -- and costly -- approach to regulating tobacco packaging and advertising.

"Thus, this court must -- and will -- act to preserve the status quo until it can evaluate, on the merits (and without incurring irreparable harm to those companies genuinely affected), the constitutionality of the commercial speech that these graphic images compel."

Floyd Abrams, a partner in the New York law firm of Cahill Gordon and Reindel who is representing Lorillard in the case, said of Monday's ruling:

"Today's ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products," he said.

Attorney Maureen Martin, a senior fellow for The Heartland Institute, said the ruling is an important victory for anyone who has railed against "living in the slavery imposed by a 24/7 Nanny State."

According to its website, The Heartland Institute is a national nonprofit whose mission is to "discover, develop and promote free-market solutions to social and economic problems."

"The law requires warning labels to be educational, but the government conceded the purpose of these images was to convince people not to smoke. The ability of these images to accomplish that purpose, the government admitted, was the only reason they were selected," Martin said in a statement.

"The court held the First Amendment includes not only the right to free speech, but also 'the right to refrain from speaking at all,' which was violated by the federal law."

She said a resolution in the case is "years away."

From Legal Newsline: Reach Jessica Karmasek by email at

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