According To The DC Circuit 'FDA Cannot Get Around The First Amendment By Pleading Incompetence…'

The D.C. Circuit rejects compelled government speech requiring graphic cigarette ads

In R.J. Reynolds v FDA, cigarette manufacturers alleged that government compelled graphic images on cigarette packages violated the First Amendment and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 553(b)(3), 705, 706(2)(A). 845 F. Supp. 2d 266 (D.D.C. 2012). The Family Smoking Prevention and Tobacco Control Act ("Act" or "the Act"), Pub. L. No. 111-31, 123 Stat. 1776 (2009), gave FDA the authority to regulate the manufacture and sale of tobacco products and directed the FDA to "issue regulations that require color graphics depicting the negative health consequences of smoking." See Pub. L. No. 111-31, § 201 (a) (amending 15 U.S.C. § 1333(d)) and required cigarette packages bear explicit textual warnings. In June 2011, the FDA published its Final Rule requiring (among other things) the display of nine new textual warnings and the nine graphic images' such as diseased lungs and a cadaver bearing chest staples on an autopsy table- on the top 50% of the front and back panels of every cigarette package manufactured and distributed in the United States on or after September 22, 2012. See, FDA, Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011) ("the Rule") Final Rule Required Warnings for Cigarette Packages. FDA proposed a dramatic expansion of the existing health warnings, which it justified based on scientific literature and a "strong worldwide consensus" regarding a great number of countries/jurisdictions that have implemented pictorial warning requirements for tobacco packaging compared to the text-only warnings the United States currently requires. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332, 2012 U.S. App. LEXIS 17925 at fn3 (D.C. Cir. Aug. 24, 2012) (the "Circuit Court"). The Circuit Court recognized the general rule "that the speaker has the right to tailor the speech[] applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." R.J. Reynolds, 2012 U.S. App. LEXIS 17925 at *13 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573-74 (1995)). This holds true whether individuals, or corporations are being compelled to speak. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 16 (1986) (plurality opinion); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). The manufacturers...

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