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. 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. The Center’s brief argues that the tobacco industry’s First Amendment argument rests on a false distinction between fact and emotion and that the plaintiffs’ assumption that images cannot be “purely factual and uncontroversial” because they evoke an emotional response contravenes contemporary scientific understanding of how people process information.
The litigation is ongoing.