Last summer, we brought you highlights from oral arguments at the Sixth Circuit in the free speech challenge to the Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, which gives the Food and Drug Administration the power to regulate tobacco advertising and marketing. See Discount Tobacco City & Lottery v. United States (6th Cir., Case Nos. 10-5234 & 5235). The plaintiffs argued to the panel that several provisions of the Tobacco Control Act violate their First Amendment rights to free speech. One key element of the Act is the requirement of new color warnings which graphically depict the negative health consequences of smoking. Beginning in Fall 2012, these new warnings must occupy the top half of the front and back of all cigarette packages, and must occupy 20% of all cigarette and smokeless tobacco advertising. The warnings, which were formally unveiled by the FDA on June 21, 2011, include graphic images of, among other things, a dead man’s body with staples lining his chest, decaying teeth, and a man breathing through a hole in his neck.
A similar lawsuit was filed in the U.S. District Court for the District of Columbia back in August 2011 by five of the country’s largest tobacco manufacturers. On Wednesday, District Court Judge Richard Leon granted summary judgment in favor of the tobacco companies, ruling that “these mandatory graphic images violate the First Amendment by unconstitutionally compelling speech.” See Memorandum Opinion, R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Admin., Case No. 11-1482 (D.D.C.) (PDF). Judge Leon thus permanently permanently enjoined the FDA’s final rule establishing graphic warnings for cigarette packaging and advertising.
We’re still waiting for a ruling in the Sixth Circuit case, which was argued over seven months ago. The panel includes Sixth Circuit Judges Eric L. Clay and Jane B. Stranch, and United States District Judge Michael R. Barrett (Southern District of Ohio), sitting by designation. It will be interesting to see whether Judge Leon’s recent opinion influences the Sixth Circuit’s decision. We’ll, of course, give you a full report on the Sixth Circuit’s decision as soon as it is handed down.