Last Friday, the D.C. Circuit struck down an FDA mandate that required tobacco manufacturers to slap graphic warning labels on every pack of cigarettes sold encouraging smokers to kick the habit. In a 2-1 decision, the majority in R.J. Reynolds Tobacco Co. v. FDA ruled that the government could not force tobacco manufacturers to go beyond making purely factual and accurate commercial disclosures "by making 'every pack of cigarettes in the country [a] mini billboard' for the government's anti-smoking message."
The "FDA failed to present any data," wrote Judge Janice Brown, "much less the substantial evidence…showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.”
Judge Judith Rogers disagreed with her colleagues on the panel, however. In her dissenting opinion, Judge Rogers argued that "[t]he government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers," adding, "[t]he tobacco companies' decades of deception regarding these risks, especially the risk of addiction, buttress this interest."
As I pointed out last April, the Sixth Circuit reached a conflicting conclusion in Discount Tobacco City & Lottery, Inc. v. United States, a case in which a divided panel upheld the government's right to force tobacco manufacturers to print the provocative images on its products.
As a rule of thumb, the Supreme Court will typically let an issue on which the circuits are split "percolate" until at least three circuit courts have squarely addressed the issue. The Court may make an exception in this case since the conflict involves the constitutionality of an administrative regulation rather than a mere matter of statutory interpretation. The FDA will have ninety days to request the Supreme Court's review of the case.
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