Hearing underway in U.S. Federal District Court on cigarette health warnings.
Yesterday, Sept. 21, a hearing took place before U.S. Federal District Court Judge Richard Leon on a lawsuit filed by five 
tobacco manufacturers seeking a preliminary injunction against the implementation of the FDA’s new text and graphic picture warning labels for cigarette packages and cigarette advertisements, The National Association of Tobacco Outlets (NATO) reported.
The five tobacco manufacturers include R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. The lawsuit has been assigned Case No. 1:11-CV-01482 in the U.S. Federal District Court for the District of Columbia.
Judge Leon plans to issue a decision on the request for a preliminary injunction by the end of October.
During the two hour hearing, Judge Leon “closely questioned Justice Department lawyer Mark Stern on whether the nine graphic images proposed by the FDA convey just the facts about the health risks of smoking or go beyond that into advocacy—a critical distinction in a case over free speech,” the Associated Press reported.
The five tobacco manufacturers filed the lawsuit on Aug. 16, 2011 against the Food and Drug Administration seeking to: (1) declare that the new text and graphic picture warnings are an unconstitutional infringement of the manufacturers’ First Amendment right to free speech, (2) order that the FDA’s Rule implementing the text and graphic picture warnings be set aside, (3) enter a judgment that any new text and graphic picture warnings will become effective 15 months after the FDA issues a replacement set of warnings that are permissible under the U.S. Constitution and comply with federal law, and (4) enter a preliminary and permanent injunction enjoining the FDA from enforcing the text and graphic picture warnings until 15 months after the FDA issues a replacement set of warnings that are permitted under the U.S. Constitution and comply with federal law.
This lawsuit is the second suit filed against the FDA’s text and graphic picture health warnings. The first lawsuit was filed in August 2009 by NATO retailer Discount Tobacco City & Lottery Inc., R.J. Reynolds Tobacco Co., Conwood Co. LLC, Commonwealth Brands Inc., Lorillard Tobacco Co. and National Tobacco Co.
In this initial lawsuit, the plaintiffs sought to overturn the FDA’s ban on color advertisements and strike down as unconstitutional the text and graphic picture warnings, as well as other bans such as event sponsorships and promotional items with brand names and logos. In this lawsuit, the federal district court judge overturned the color advertising ban as unconstitutional, but upheld the text and graphic picture warnings as well as the other restrictions. The judge’s ruling was appealed to the U.S. Circuit Court of Appeals and a hearing was held July 27 on this appealed lawsuit. A decision from the U.S. Circuit Court of Appeals should be issued in several months, NATO reported.
The second lawsuit was filed because in August 2009 the industry did not know what the FDA would require in terms of new text and graphic picture health warnings. Following the release of the FDA’s rule in June 2011 mandating specific text warnings and graphic pictures on cigarette packages and advertisements, the five manufacturers proceeded to file a second lawsuit in an effort to fight the actual cigarette health warnings now required by the FDA.
