The National Association of Tobacco Outlets (NATO) has reported that on Feb. 1, 2023, the U.S. Food and Drug Administration (FDA) filed a Notice of Appeal with the U.S. Court of Appeals for the Fifth Circuit to appeal the decision issued on Dec. 7, 2022, by the U.S. District Court for the Eastern District of Texas invalidating the FDA’s graphic cigarette health warning regulations. However, no more news has yet been reported.
On Dec. 7, 2022, the U.S. District Court for the Eastern District of Texas issued a decision to vacate the FDA’s graphic cigarette health warning regulations because the regulations violated the free speech protections under the First Amendment to the U.S. Constitution. By vacating the regulations, the graphic cigarette health warnings were nullified and devoid of any legal effect.
The decision issued on Dec. 7 involved the first lawsuit filed by R.J. Reynolds Tobacco Co. and other plaintiffs. In this decision, the court determined that the second set of graphic cigarette health warnings violated the First Amendment’s right to refrain from speaking. That is, the government’s cigarette health warnings would have compelled manufacturers and retailers to speak by displaying cigarette packages on store shelves and advertising cigarettes when, if given a choice, manufacturers and retailers would choose not to do so.
Moreover, the court also found that the graphic cigarette health warnings were not purely factual but rather open to interpretation by consumers. In addition, the warnings were not narrowly tailored but rather more extensive than necessary. This means that the government could have pursued other, less burdensome alternatives, such as increasing funding for its own anti-smoking advertisements or expanding education efforts about the health impacts of smoking.
With the FDA’s graphic cigarette health warnings vacated, the regulations have been revoked and cannot be enforced against manufacturers or retailers. This also means that retailers which create or produce their own cigarette advertisements are not required to file a graphic cigarette health warning rotational plan with the FDA, which describes what warnings would appear on retailer advertisements over a certain period of time.
