ANA Argues that FDA’s Graphic Warnings Rule For Tobacco Products Violates the First Amendment

ANA has filed a “friend of the court” brief in opposition to a series of graphic warnings required by the Food and Drug Administration (FDA) on all tobacco products and advertising. Six tobacco companies filed a lawsuit in federal court in D.C. challenging the new rules, which were issued on June 21, 2011, and are seeking a preliminary injunction. 

The new FDA Graphic Warnings Rule was mandated by Congress under the Family Smoking Prevention and Tobacco Control Act of 2009.  The new warnings required by the FDA include highly disturbing graphics of cadavers, smoke coming out of a hole in a throat and a lung filled with cigarette butts. We argue that these are not the type of neutral and factual labels that may be constitutionally permissible. The FDA should not be in the business of making lawful products and advertising difficult to look at in order to promote their regulatory agenda.

We were joined by the American Advertising Federation (AAF) in filing this brief, which was written by Robert Corn-Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP.