Tobacco Graphics Warning Requirements Delayed A Third Time by Texas Federal Court

On Tuesday, the Eastern District of Texas granted a motion from tobacco companies to extend the effective date of an already postponed rule requiring graphics to be displayed on tobacco products showing smoking injuries.  The Order explained that the rule would be postponed for an additional 90 days, until April 14, 2022. 

“Any obligation to comply with the Tobacco Control Act’s warning requirements, 5 U.S.C. § 1333(a)(1) and (b)(1), and the additional requirements in 21 U.S.C. §§ 387c(a)(2) and 387t(a), is also postponed for an additional 90 days, as is any other obligation to comply with a deadline tied to the effective date of the rule,” Judge J. Campbell Barker said in the Order. 

The debated rule, associated with the Tobacco Control Act, was issued in March 2020 by the Food and Drug Administration, the court initially ruled to postpone the rule after a stipulation from the parties cited the high compliance costs to the plaintiffs and possible difficulties due to the COVID-19 pandemic. On December 2, 2020 the labeling rule was pushed for the second time, giving it a new effective date of January 14, 2022. 

The plaintiffs, including R.J. Reynolds Tobacco Company, Santa Fe Natural Tobacco Company, ITG Brands, Liggett Group, Neocom, Rangila Enterprises, Sahil Ismail, and Is Like You, asked the court in their Motion, which was filed on February 26, for an additional 90-day extension, and for the ability to “seek additional relief if it becomes necessary.” They explained that 86 days have passed since the last 90 day extension and that the manufacturers purported that they “are once again on the threshold of incurring the same irreparable and imminent compliance costs.”

In their petition and following arguments, the plaintiffs have purported that the rule, which would require them to display images like “a large tumor, bloody urine, or a pair of diseased feet with amputated toes,” would cause irreparable harm, including costs to modify packaging to comply with the rule. 

The defendants opposed the extension and explained in their opposition on Monday by citing their opposition to the previous extension including that the date has already been extended and that the plaintiffs had not clearly shown evidence that harm is imminent, because the alleged costs would not begin until well after the rule was published. 

A majority of the plaintiffs are represented by Jones Day, ITG Brands is represented by Latham & Watkins, and Liggett Group is represented by O’Melveny & Myers and Kasowitz Benson Torres. The defendants, including the Food and Drug Administration and the United States Department of Health and Human Services, are represented by the Department of Justice.