FDA Decides Not to Challenge Court Decision Tossing out Tobacco Warning Labels

Last week, the Food and Drug Administration (FDA) announced they would not seek Supreme Court review of the decision by the U.S. Court of Appeals for the District of Columbia Circuit that invalidated its rulemaking on graphic warning labels for cigarette packaging and advertisements.  

The FDA’s rulemaking, required by the 2009 Family Smoking Prevention and Tobacco Control Act (which granted regulatory authority over tobacco products to the FDA), would have required grisly, graphic images to accompany the warning text on all tobacco packaging and advertisements.  Last August, the D.C. Circuit’s decision vacated the FDA rule (and upheld the decision of the District Court for the District of Columbia), holding that the FDA rule would turn product packaging and ads into virtual billboards for the government’s preferred message in violation of the First Amendment.  It also noted there were less intrusive methods that can be used to reduce smoking, and that compelling speech went too far under the Constitution.  

ANA has been involved in the case from the very start.  We filed a “friend of the court” brief first with the District Court (available here) and then when the case was appealed to the D.C. Circuit, which can be viewed here.

The FDA will now have to start over on its rules to implement the Family Smoking Prevention and Tobacco Control Act.  

We are also following the challenge to the advertising and marketing restrictions in the Act that was initiated in federal court in Kentucky and later appealed to the Sixth Circuit Court of Appeals. The Supreme Court is currently weighing whether to accept the appeal.  ANA, along with the 4A’s and AAF, have urged the Court in a “friend of the court” brief to hear the case (available here).   

If you have any questions, please contact Dan Jaffe in ANA’s Washington, D.C. office at 202.296.2359 or at djaffe@ana.net.