FDA appeals injunction in cigarette warning label case

John O'Brien Nov. 30, 2011, 9:51am

WASHINGTON (Legal Newsline) - The Food and Drug Administration is appealing a federal judge's decision to grant tobacco companies a preliminary injunction against new graphic warning labels.

The FDA filed its notice of appeal Tuesday, announcing its intent to send the matter to the U.S. Court of Appeals for the District of Columbia Circuit. U.S. District Judge Richard Leon granted the injunction on Nov. 7.

R.J. Reynolds, Commonwealth Brands, Liggett Group and Santa Fe Natural Tobacco all challenged the FDA's new warning label requirements 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, Leon, 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."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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