Can graphic warning labels be “factual, accurate, and uncontroversial” when they evoke negative emotions to counteract widespread misunderstandings of the risks of smoking cigarettes?
Shortly after the FDA issued its new graphic warning label rule in the March 18, 2020 Federal Register, R.J. Reynolds Tobacco Company and several other manufacturers, distributors, and retailers filed suit against the FDA in U.S. District Court for the Eastern District of Texas. The complaint alleges that (1) the graphic warnings violate the First Amendment; (2) the Tobacco Control Act’s requirement that graphic warning labels be issued and occupy 50 percent of packaging and 20 percent of advertising violates the First Amendment; and (3) the issuance of the warnings violated the Administrative Procedure Act (APA).
The industry’s new challenge to the graphic warning label rule alleges that the new rule—like the earlier iteration of the graphic warning label rule challenged in 2011-- uses “gruesome images” “designed to evoke negative emotions, such as fear and shock,” and that “misrepresent or exaggerate the potential effectives of smoking.” The complaint also criticizes the methodology and findings of the qualitative and quantitative studies the FDA conducted to develop the warnings. The industry argues that the FDA failed to consider less intrusive means of conveying the messages. It also revives the argument it made in Discount Tobacco City and Lottery, arguing that the graphic warning requirement itself, as set out in the Tobacco Control Act, is unconstitutional under the First Amendment in all circumstances. That argument was rejected by the Sixth Circuit Court of Appeals in Discount Tobacco City but has not been considered by the 5th Circuit.
On May 6th, 2020, both the FDA and the industry plaintiffs filed a joint motion to postpone the rule’s effective date 120 days due to the COVIID-19 pandemic. The court granted this motion on May 8, 2020, meaning that the rule now has an effective date of October 16, 2021. The court also set a briefing schedule for the industry’s combined motions for preliminary injunction and summary judgment. The industry Plaintiffs’ combined Motion for Summary Judgment and Preliminary Injunction was filed with the court on May 15, 2020.
The government responded with its own summary judgment motion on July 2, 2020. The Public Health Law Center, twenty states and the District of Columbia, and Public Citizen all filed amicus briefs with the court in support of the FDA (view the Public Health Law Center’s amicus brief here.) A hearing was held on the motion to dismiss on September 9, 2020. Oral argument on the summary judgment and preliminary injunction motions was held on December 11, 2020. The court granted subsequent motions to postpone and issued further extensions on the final effective date for the rule in March, May, August, and November 2021.
The case is ongoing and the court has issued multiple extensions. On November 12, 2021, the District Court issued another postponement for the effective date of the final rule The case is ongoing and the court has issued multiple extensions. On November 12, 2021, the District Court issued another postponement for the effective date of the final rule, which is now January 9, 2023.