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Federal Court Blocks FDA’s Graphic Warnings for Tobacco Products and Advertising

March 1, 2012; Washington, D.C. - The Association of National Advertisers (ANA) applauds the U.S. District court for the District of Columbia for issuing a permanent injunction blocking the enforcement of the Food and Drug Administration (FDA) Rule requiring graphic new warnings on all tobacco products and advertising. 

The FDA 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, 2011, which included highly disturbing graphics of cadavers, smoke coming out of a hole in a throat, and a lung filled with cigarette butts.  Five tobacco companies filed a lawsuit in federal court in DC challenging the new rules.  ANA filed a "friend of the court" brief in the case on November 21, 2011, arguing that the Rule is an illegitimate effort to deputize advertisers to promote the government's message. 

Dan Jaffe, ANA's Executive Vice President for Government Relations stated:  "We are very pleased that the District Court has granted the plaintiffs' motion for summary judgment.  Judge Leon clearly has held that the FDA Rule would turn product packages and ads into miniature billboards for the government's desired message.  As he stated, there are many other less intrusive alternatives that the government can use to reduce smoking, but the government's compelling speech crosses a critically important constitutional line."

In the opinion released yesterday, U.S. District Court Judge Richard Leon granted the plaintiff's motion for summary judgment.  On his examination of the Rule, Judge Leon wrote that "the Government...may not force others...to serve as its unwilling mouthpiece." The judge further emphasized that since the limited exception to compelled speech - "factual and uncontroversial information" - clearly did not apply to the "gruesome" graphic images put forth by the FDA that the rule was subject to a heightened level of scrutiny.  Judge Leon held that "the Government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the Rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech" and violates the First Amendment. 

Jaffe noted:  "While the issue here is tobacco advertising, there are numerous other products for which this Rule would have set a very dangerous precedent." 

The case is scheduled for an oral argument in April on the appeal of November's preliminary injunction at the U.S. Court of Appeals for the District of Columbia Circuit.

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About the ANA
Founded in 1910, the ANA (Association of National Advertisers) leads the marketing community by providing its members with insights, collaboration, and advocacy. ANA's membership includes 400 companies with 10,000 brands that collectively spend over $250 billion in marketing communications and advertising. The ANA strives to communicate marketing best practices, lead industry initiatives, influence industry practices, manage industry affairs, and advance, promote, and protect all advertisers and marketers. For more information, visit http://www.ana.net/, follow us on Twitter, join us on Facebook, or visit our YouTube channel.

Press Contacts:

Luna Newton
CooperKatz & Co. for the ANA
lnewton@cooperkatz.com
917-595-3061

Marcus Hardy
CooperKatz & Co. for the ANA
mhardy@cooperkatz.com
917-595-3043

 

 

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