ANA Urges Court to Permanently Enjoin Enforcement of FDA’s Graphic Warnings Rule for Tobacco Products

WASHINGTON (Nov. 21, 2011) - The Association of National Advertisers (ANA) has filed a "friend of the court" brief with the U.S. District Court for the District of Columbia, urging the court to permanently enjoin enforcement of the FDA Rule requiring graphic new warnings on all tobacco products and advertising. 

The new FDA Graphic Warnings Rule was mandated by Congress under the Family Smoking Prevention and Tobacco Control Act of 2009. The FDA issued its final rule on June 21. Six tobacco companies filed a lawsuit in federal court in DC challenging the new rules and seeking a preliminary injunction. ANA filed a "friend of the court" brief in the case on September 16, arguing that "these gruesome, graphic warnings for all tobacco ads and packages are so excessive that they clearly violate the First Amendment."

In an opinion released on November 7, U.S. District Court Judge Richard Leon granted the companies' request for a preliminary injunction, holding that "Plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech." The brief filed today urges the court to convert the preliminary injunction against the Graphic Warnings Rule into a permanent injunction.

Dan Jaffe, ANA's Executive Vice President of Government Relations, stated: "We are very pleased that the District Court granted the preliminary injunction. For all of the reasons expressed by Judge Leon in that decision, we are very hopeful that the court will now grant the motion for a permanent injunction against the Rule. The new text and graphics required by the FDA Rule would convert product packages and ads into platforms for the government's viewpoint. The government can require neutral and factual disclosures, but it cannot turn packaging and advertising into graphic billboards for the government's messages."

The new warnings adopted by the FDA in June include highly disturbing graphics of cadavers, smoke coming out of a hole in a throat and a lung filled with cigarette butts. In his opinion, Judge Leon wrote: "characterizing these graphic images as 'warnings' strikes me as inaccurate and unfair. At first blush, they appear to be more about shocking and repelling than warning." 

The brief argued that the Rule is an illegitimate effort to deputize advertisers to promote the government's message: "Clearly, the intent of the HHS and FDA was to choose graphic warnings that are provocative, visually confrontational and propagandistic, rather than to seek factual and neutral information. Whether or not such tactics are effective, regulating speech and forcing companies to highlight the government's message in order to scare people into 'improving' their behavior is antithetical to the First Amendment." 

Jaffe stated: "While the FDA's rule relates to tobacco advertising, the underlying premise would set a very dangerous precedent for other products that become controversial. Indeed, Judge Leon specifically acknowledged that danger in his November 7 opinion, noting the possibility of future government efforts to impose graphic warnings for food or alcohol beverage ads. History shows that there is a wide range of products about which some believe the government knows 'best' and should have the power to regulate advertising in order to tilt public debate in a preferred direction. This is precisely the kind of paternalism that the First Amendment does not permit."

ANA was joined by the American Advertising Federation (AAF) in filing the industry brief. The brief was written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP. A copy of the brief is available here. 

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The mission of the ANA (Association of National Advertisers) is to drive growth for marketing professionals, brands and businesses, the industry, and humanity. The ANA serves the marketing needs of 20,000 brands by leveraging the 12-point ANA Growth Agenda, which has been endorsed by the Global CMO Growth Council. The ANA’s membership consists of U.S. and international companies, including client-side marketers, nonprofits, fundraisers, and marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). The ANA creates Marketing Growth Champions by serving, educating, and advocating for more than 50,000 industry members that collectively invest more than $400 billion in marketing and advertising annually.