Cigarette manufacturers filed a complaint against the Food and Drug Administration in the Eastern District of Texas over eleven new textual warnings, each with their own graphic image, which are now required on any cigarette package. The images include a specimen cup with bloody urine and diseased feet with amputated toes. The complaint claims the images “are designed to frighten, shock, and disgust adult cigarette consumers,” and “cross the line into governmental anti-smoking advocacy.”
These warnings and graphics are required to occupy the top 50 percent of the front and back of the packaging and the top 20 percent of advertising. Textual warnings have been required on cigarette packages for almost 55 years. After Congress passed the Tobacco Control Act in 2009, the FDA replaced the requirements with “government-created anti-smoking advocacy” with “massive” colored graphics but the D.C. Circuit Court ruled these violated the First Amendment. The complaint says these new requirements are no different and asked for the new FDA rule and the 2009 Tobacco Control Act Act to be struck down.
R.J. Reynolds is represented by Jones Day along with the majority of the plaintiffs; Neocom Inc., Tangila Enterprises Inc., Rangila LLC, IS Like You Inc., Sahil Ismail Inc., and Santa Fe Natural Tobacco Company. ITG Brands is represented by Latham & Watkins and Liggett Group is represented by O’Melveny & Myers.
The companies claim these requirements are “unprecedented” in the United States. “Never before in the United States have producers of a lawful product been required to use their own packages and advertising to convey an emotionally charged government message urging adult consumers to shun their product. These requirements force Plaintiffs not to convey purely factual and uncontroversial statements about the risks of smoking, but to become a mouthpiece for the government’s anti-smoking advocacy,” the complaint states.
They argue the requirements abridge the First Amendment as they are being ordered to use their property to spread the state’s messages. They also argue that the warnings are not narrowly tailored to the government’s purpose and are “extremely burdensome.”
The companies claim other advertising restrictions, factual warnings, sales restrictions, and public education campaigns have adequately taught the public the risks of smoking saying in the past several decades it has been understood by the general public that smoking is harmful. They say 91 percent believe smoking is ‘very or extremely harmful,’ and 7 percent believe it is ‘somewhat harmful.’ They said these efforts have been successful and cigarette purchasing has reduced significantly in that time.
The companies argue that in addition to financial losses from being required to support an anti-smoking government agenda on their packaging, they will lose money from needed to re-design packages and possibly having cigarettes packaged and sent out that will not be able to be sold if new packaging isn’t approved in time.