[Ip-health] New York Times: Court Blocks Graphic Labels on Cigarette Packs
thiru at keionline.org
Tue Nov 8 01:14:57 PST 2011
November 7, 2011
Court Blocks Graphic Labels on Cigarette Packs
By DUFF WILSON
A federal judge on Monday blocked a Food and Drug Administration requirement that tobacco companies put big new graphic warning labels on cigarette packages by next September.
In a preliminary injunction, Judge Richard J. Leon of United States District Court in Washington ruled that cigarette makers were likely to win a free speech challenge against the proposed labels, which include staged photos of a corpse and of a man breathing smoke out of a tracheotomy hole in his neck.
The judge ruled that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government’s “obvious anti-smoking agenda!”
The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster the warnings on tobacco packages. The agency has said they are the most significant change to health warnings in 25 years.
The Justice Department is reviewing the ruling, a spokesman, Charles S. Miller, said. The F.D.A. declined to comment, a spokeswoman said.
If the ruling is appealed — as both sides expect — it would join a different federal judge’s ruling on similar issues on appeal and raise the possibility that the issue will be decided by the United States Supreme Court.
Five tobacco companies had challenged the selection of nine specific graphic warnings as an unconstitutional intrusion on commercial free speech. The judge agreed with them on almost every point, saying the companies would suffer irreparable harm if the provision were enforced before it was fully decided in courts, a process that is likely to take years.
“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information,” Judge Leon wrote.
“At first blush, they appear to be more about shocking and repelling than warning,” Judge Leon added in a footnote.
“The government has been expecting this decision and will appeal,” Mr. Myers said. “In addition, many of the same issues are now pending before a panel of the United States Court of Appeals for the Sixth Circuit because a federal judge in Kentucky reached a decision different than Judge Leon’s decision today.”
In that case, Judge Joseph H. McKinley Jr. ruled the cigarette makers could be forced to put graphic images and warnings on the top half of their packages, as Congress required. But Judge Leon noted that Judge McKinley had not seen the actual proposed images.
Judge Leon was appointed to the bench in 2002 by President George W. Bush. Last year, Judge Leon also ruled against the F.D.A. over e-cigarettes, an electronic device that looks like a cigarette and delivers nicotine, saying they should be regulated as tobacco products rather than under the stricter regimen as drug delivery devices. The government has not appealed that case.
Other plaintiffs in the suit are Commonwealth Brands, the Liggett Group, and Santa Fe Natural Tobacco. The Altria Group, parent company of Philip Morris, makers of the dominant brand of Marlboro cigarettes, did not join the lawsuit. Altria was also the only major cigarette maker to support the new legislation.
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