Are Graphic Warning Labels Heading for En Banc Review?

The legal battle over the Food and Drug Administration's proposed graphic warning label requirements for cigarettes could be headed for one more round in the D.C. Circuit Court of Appeals.

The Justice Department, still stinging from its loss in the influential appellate court, is asking for en banc review of a panel decision finding that the FDA did not present substantial evidence showing that the new warnings would accomplish the agency's stated objective of reducing smoking rates, reports the Blog of Legal Times.

Tobacco companies oppose en banc review. Obviously.

The new warning label requirement mandated images -- such as photos of rotting teeth, diseased organs and a dead body -- in addition to the standard textual warning. Five tobacco companies -- R. J. Reynolds, Lorillard, Commonwealth Brands, the Liggett Group and Santa Fe Natural -- sued the FDA claiming that the new labels went beyond the "compelled commercial speech" that is permissible to protect consumers from confusion and deception, and mandated "grotesque" labels to persuade smokers to quit, reports The New York Times.

In November, District Judge Richard Leon issued a temporary injunction blocking the new warning label requirement from taking effect. Judge Leon made the injunction permanent in March.

The D.C. Circuit affirmed, noting that the government failed the Central Hudson intermediate scrutiny test because the FDA didn't provide evidence that the graphic warning labels would lower smoking rates. According to the appellate court, the First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal.

If the D.C. Circuit affirms the panel or denies rehearing, the FDA and the tobacco companies will likely end up litigating the graphic warning labels in the Supreme Court to resolve a circuit split between the D.C. Circuit and the Sixth Circuit Court of Appeals. In March, the Sixth Circuit upheld the FDA's label requirements.

Related Resources:

• R.J. Reynolds Tobacco Company v. FDA (DC Circuit Court of Appeals)
• FDA Gets Burned in Graphic Warning Label Appeal (FindLaw's D.C. Circuit Blog)
• Showdown? Sixth Circuit OKs New Cigarette Warning Label (FindLaw's Sixth Circuit Blog)