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

Washington, D.C. – August 27, 2012 – The ANA (Association of National Advertisers) applauds the U.S. Court of Appeals for the District of Columbia Circuit for vacating the Food and Drug Administration (FDA) Rule requiring graphic new warnings on all tobacco products and advertising. The 2-1 decision of the Court of Appeals was announced on August 24 in the case of RJ Reynolds Tobacco Company v. FDA.

“We are very pleased that the Court of Appeals has vacated the FDA’s graphic warnings Rule,” said Dan Jaffe, ANA’s Group Executive Vice President for Government Relations. “The court held that the Rule would turn product packages and ads into miniature billboards for the government’s desired message. As the court noted, there are many other less intrusive alternatives the government can use to reduce smoking, but having the government compelling speech crosses a critically important constitutional line.”

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 and the American Advertising Federation (AAF) 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. In March, the U.S. District Court for the District of Columbia issued a permanent injunction blocking enforcement of the law. That decision was appealed to the Court of Appeals and on April 4, ANA and AAF filed another “friend of the court” brief in the case.

The court noted that “this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country [a] mini billboard’ for the government’s anti-smoking message.’”

In vacating the Rule, the court stated: “The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal. FDA failed to present any data – much less the substantial evidence required under the APA – showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates. The Rule thus cannot pass muster under Central Hudson.”

“While the issue here is tobacco advertising, there are numerous other products for which this Rule would have set a very dangerous precedent,” said Jaffe. “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. That is precisely the kind of paternalism that the First Amendment does not permit.”

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About the ANA

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.