FDA May Get Burned by D.C. Circuit on Cigarette Warning Labels

Tuesday’s oral argument on the FDA’s proposed cigarette carton labels drew more attention than an ash tray in a D.C. restaurant.  Because a divided Sixth Circuit has already upheld the underlying federal statute against a similar constitutional challenge (opinion pdf), the case is a potential cert grant if, as some reports predict, the D.C. Circuit strikes down the FDA’s implementation of the statute on First Amendment grounds.

R.J. Reynolds Tobacco Company v. FDA, No. 11-5332 (argued April 10, 2012) (Rogers & Brown, JJ., & Randolph, S.J.)


  • Mike Scarcella, DOJ Urges D.C. Circuit to Support Graphic Cigarette Warning Labels, Blog of Legal Times (April 10, 2012) (“Judge Brown continued: ‘I don’t really understand where this stops. It seems to me that there is nothing that the government can’t compel the seller of a disfavored product to put on their product if they think it’s for the public good.’  Brown seemed concerned that the government could compel other products to carry images. She said the government is essentially telling smokers “don’t buy this product.”)
  • Anna Yukhananov, U.S. Appeals Court Hears Case of Graphic Tobacco Ads, Reuters (April 10, 2012) (“Judge A. Raymond Randolph wondered if the government could also place warning labels on automobile doors with gruesome images of car accidents to warn people about the risks of speeding.  [¶]  However, Randolph disagreed with the tobacco companies, saying there is no case that shows commercial disclosure should only provide information, not deter use of a product.”)
  • Jennifer Corbett Dooren, U.S. Court Hears Case on Graphic Tobacco Ads, Wall St. J. (April 11, 2012) (“‘You can’t use cigarettes safely. So what?’ said Judge A. Raymond Randolph. ‘What’s that got to do with the First Amendment. I have a fundamental problem with the way both sides have approached this case and the district judge.’ . . . Mr. Randolph said an important part of the case is looking at law involving agency rule-making procedures. On the constitutional issue involving the graphic images, the judge said, ‘We are in new territory.’ “).
  • Frederic J. Frommer D.C. Circuit Weighs Graphic Cigarette Warnings, Associated Press (April 10, 2012) (“The third judge on the panel, Judith W. Rogers, an appointee of Democrat Bill Clinton, didn’t ask any questions of the Obama administration, but she grilled Noel J. Francisco, a lawyer for tobacco companies.”)
  • Erica Teichert, D.C. Circ. Skeptical of New FDA Cigarette Warning Labels, Law360 (“Two judges on a D.C. Circuit panel called out the U.S. Food and Drug Administration on Tuesday, saying the agency’s new graphic warning images and labels for cigarette packets force tobacco companies to become advocates against smoking.”) (subscription required)
  • Debbie Elliott, Federal Court To Weigh Graphic Cigarette Labels, NPR Morning Edition (April 10, 2012) (“George Washington University professor Jonathan Turley says the threshold question is how far the government can go to compel commercial speech. ‘These graphic images are really the government getting into marketing and trying to force companies that have lawful products to use repellant packaging,’ Turley says. He says other businesses should be paying attention. ‘Cigarettes are not the only harmful product,’ he says. ‘Can they, for example, require a picture of a cirrhotic liver on a wine bottle or any type of alcoholic beverage?’ “).
  • New York Times Editorial Board, Bogus Challenge to Cigarette Warnings, N.Y. Times (April 9, 2012) (“Reversing Judge Leon should be an easy call. The Supreme Court has long upheld restrictions on commercial speech that protect consumers. The imagery ordered up by the government does not amount to impressible ideological advocacy or ‘compelled speech.’ A health warning does not have to be ineffective to be constitutional. The real message, of course, is backed by abundant evidence: smoking kills.”)

See also:

  • Discount Tobacco City & Lottery, Inc. v. United States, No. 10-5234 (6th Cir. Mar. 19, 2012) (pdf) (“[W]e vigorously disagree with the [dissent’s] underlying premise that a disclosure that provokes a visceral response must fall outside Zauderer’s ambit. Facts can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm reason, but that does not magically turn such facts into opinions.”)
  • The D.C. Circuit Is Not “Ready to Throw in the Towel” on Oral Argument Recordings, D.C. Circuit Review (Mar. 31, 2012) (“[T]he D.C. Circuit does not even make audio recordings of oral arguments available to the public as the Supreme Court and most other federal appellate courts do.”)

2 responses to “FDA May Get Burned by D.C. Circuit on Cigarette Warning Labels

  1. Pingback: Divided D.C. Circuit Rejects Airlines’ First Amendment Challenge Based on Agency’s Interpretation of its Own Rule | D.C. Circuit Review

  2. Pingback: Does Tobacco Companies’ RICO Loss Presage First Amendment Victory? | D.C. Circuit Review

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