AAF Government Report

November 10, 2011

Clark Rector Jr., Executive Vice President – Government Affairs

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Judge Snuffs Out Warnings

U.S. District Judge Richard Leon has issued a temporary injunction preventing the Food and Drug Administration from requiring tobacco companies to display a rotating series of graphic images and warnings in cigarette advertising and on packaging. The images would have occupied the top 20% of an advertisement, and the top 50% of the front and back panels of the product packaging.

The judge expressed skepticism over the potential effectiveness and informational nature of the warnings, but ultimately ruled them unconstitutional because they were not narrowly tailored and would be unlikely to pass the Central Hudson test for commercial speech restrictions under the First Amendment.

The judge recognized that the issues in this case go far beyond just tobacco. He twice specifically cited the potential for similar restrictions on food and alcoholic beverages:

One can only wonder what the Congress and the FDA might conjure for fast food packages and alcohol containers if, like the Canadian government, they were not compelled to comply with the intricacies of our First Amendment jurisprudence. (footnote, page 20)

And when one considers the logical extension of the Government's defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public's interest in preserving its constitutional protections - and, indeed, the Government's concomitant interest in not violating the constitutional rights of its citizens - are best served by granting injunctive relief at this preliminary stage. (page 28)

AAF filed an amicus brief in the case arguing that the proposed warnings violated First Amendment protections for commercial speech.

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