Yesterday the Appellate Daily posted an interesting piece by Michelle Olsen on an emerging circuit split over the Family Smoking Prevention and Tobacco Control Act. While the name is less than memorable, the resulting graphic warnings that now dress the upper half of every pack of cigarettes sold in the U.S. are unforgettable. But don’t take my word for it, see for yourself:
While lawmakers’ latest antismoking initiative may resemble the type of satirical headlines that often grace the cover of The Onion, courts have taken the legislation very seriously. As the Appellate Daily reports, Judge Richard Leon of the U.S. District Court for the District of Columbia recently “said that the images violate the companies’ First Amendment rights by forcing them to be ‘the Government’s mouthpiece.’” R.J. Reynolds Tobacco Co. v. FDA, Civil Case No. 11-1482 (RJL) (Feb. 29, 2012) (mem. op.).
The following month, the Sixth Circuit reached a different conclusion in Discount Tobacco City & Lottery, Inc. v. United States, a case in which a divided panel upheld the graphic images. Nos. 10-5234 &10-5235 (6th Cir. Mar. 19, 2012).
In her portion of the shared majority opinion, Judge Jane Stranch supported the FDA’s warning-label requirement based on the notion that “[a] warning that is not noticed, read, or understood by consumers does not serve its function,” adding, “[t]he new warnings rationally address these problems by being larger and including graphics.” The dissenting judge, on the other hand, found the graphics to be nothing more than an “attempt to flagrantly manipulate the emotions of consumers.”
The Appellate Daily piece reports that tobacco companies are presently considering whether to request a rehearing from the Sixth Circuit en banc or review by the Supreme Court. The article notes that the issue’s “nationwide economic and health implications” render it ripe for review.