R.J. Reynolds Seeks Permanent Ban On Graphic FDA Labels

by Jenny Novac on February 6, 2012

R.J. Reynolds Tobacco Co. and other tobacco companies asked a Washington federal court Wednesday to make permanent an injunction it granted halting the rollout of graphic warning labels on cigarette packages, with an impending appeal to the D.C. Circuit in mind.

R.J. Reynolds brands

R.J. Reynolds cigarette brands

U.S. District Judge Richard Leon granted the tobacco makers a temporary victory Nov. 7, issuing a preliminary injunction that blocked the the federal government from rolling out new, graphic cigarette warning labels that include images of a cadaver, a woman weeping and the phrase “Smoking can kill you.” The U.S. Food and Drug Administration appealed that ruling to the D.C. Circuit on Nov. 29.

“The court is painfully aware that this is not the last stop on the railroad,” Judge Leon said at the outset of Wednesday’s hearing on the parties’ cross-motions for summary judgment and the tobacco companies’ request for a permanent injunction.

R.J. Reynolds attorney Noel Francisco told the court that the U.S. is free to tell its citizens how to live, but cannot force manufacturers of a lawful product to serve as the government’s unwilling spokesman in its “paternalistic” mission to prevent consumers from buying that product.

“A state’s failure to persuade does not allow it to hamstring the opposition,” he said. . . .

Judge Leon noted, in response to Francisco’s arguments, that the government is not even trying to argue the constitutional standard at issue.

“They just act as if it’s a fait accompli” that the standard they are advocating is the law, Judge Leon said of the government. . . .

DOJ attorney Mark B. Stern, in turn, even questioned whether there was any way at all the government could change Judge Leon’s mind about the labels in the wake of his preliminary injunction ruling.

“It’s no secret that the government wants people to stop smoking,” he said, calling smoking the single greatest health epidemic in the nation.

The problem is that there is no way to use cigarettes in a safe, nondeadly way, according to Stern. The government’s interest in making consumers aware of that fact “is about as compelling as it gets,” he said.

“The point of it is to go, ‘This could be you,’” Stern said.

Judge Leon expressed little sympathy for the government’s position.

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