- The Washington Times - Monday, November 7, 2011

The federal government’s plan to put images of a dead body or diseased lung on U.S. cigarette packages is on hold — and may itself be going up in smoke, according to a federal court ruling Monday.

The Food and Drug Administration (FDA) cannot force tobacco companies to put its new images and warnings on the top halves of all cigarette packages until 15 months after a final ruling on the merits of the companies’ lawsuit against the regulation, a case likely to take years, Judge Richard J. Leon of the U.S. District Court for the District of Columbia said Monday.

The preliminary injunction likely ends the FDA’s quest to have its dramatic new labels on cigarette packages by September 2012.

The final ruling, however, may not favor the government, wrote Judge Leon, a 2001 appointee of President Bush.

The court “concludes” that the five tobacco companies that brought the lawsuit “have demonstrated a substantial likelihood that they will prevail on the merits of their position,” he said in a 29-page opinion.

The government’s plan to take over 50 percent of cigarette packages in the U.S. “strongly suggests” that it seeks to use the packages for its own anti-smoking agenda, Judge Leon wrote.

Also, images such as a diseased lung, or male cadaver with chest staples, combined with warnings such as “Smoking can kill you” and a “1-800-QUIT-NOW” hot line, are not intended to merely inform, “but rather to advocate a change in consumer behavior,” he wrote.

“In short, the government has neither carried its burden of demonstrating a compelling interest” to carry the images, nor did it explain how it has tailored its “compelled commercial speech” into a constitutionally permissible form, Judge Leon said

He added in a footnote: “One can only wonder what the Congress and the FDA might conjure for fast-food packages and alcohol containers, if … they were not compelled to comply with the intricacies of our First Amendment jurisprudence.”

The FDA did not immediately respond to a request for comment. Health and Human Services Secretary Kathleen Sebelius and FDA Commissioner Margaret Hamburg are co-defendants.

“We are pleased with the judge’s ruling, and we look forward to the court’s final resolution of this case,” said Bryan Hatchell, spokesman for Reynolds America Inc., parent company of R.J. Reynolds Tobacco Co.

“Today’s ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products,” said Floyd Abrams, an attorney for Lorillard Inc., another of the plaintiffs.

Judge Leon’s ruling blocking implementation of the warning labels while the case proceeds “is wrong on the science and wrong on the law,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

He urged the Justice Department to appeal the decision, to prevent a delay in getting the FDA labels on packages and to stand up for the congressional authority that allowed the FDA to regulate the packages.

The FDA’s new regulatory authority over cigarette packages stems from the Family Smoking Prevention and Tobacco Control Act, signed in 2009 by President Obama.

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