ANA Applauds Court Decision Enjoining FDA’s Graphic Warnings Rule for Tobacco Products

WASHINGTON (Nov. 7, 2011) - The Association of National Advertisers (ANA) "enthusiastically supports" the U.S. District Court for the District of Columbia's decision to issue a preliminary injunction blocking the 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 today, 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."

Dan Jaffe, ANA's Executive Vice President. Government Relations, stated: "We are very pleased that the District Court has granted the preliminary injunction. While this is not a final decision, this is an important victory for the First Amendment rights of all marketers. The new text and graphics required by the FDA rule would convert product packages and ads into platforms for the government's viewpoint.  While the government can require neutral and factual disclosures, 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." 

Judge Leon concluded that the government had not met its responsibility to ensure that the Rule's warnings were narrowly tailored: "And while the Congress and the FDA might be genuinely challenged to craft tailored images that pass constitutional muster, that does not excuse them from striving to do so in the first instance.  Indeed, our First Amendment jurisprudence in this area of compelled commercial speech should have compelled them to at least try!"

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 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 in September. 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.