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The Food and Drug Administration's new graphic cigarette warnings may never make it to market.
On Monday, the tobacco companies won a temporary injunction barring enforcement of a regulation that places graphic images on cigarette packs. The gory images depict the more horrendous effects of tobacco use, and are accompanied by a series of textual warnings.
Federal Judge Richard Leon determined that the regulation illegally compels speech in violation of the First Amendment.
The graphic cigarette warnings were slated for a September 2012 release, and were supposed to cover about 50% of both the front and back of cigarette packs. They were also set cover about 20% of all print advertisements.
The government can legally compel this type of commercial speech so long as it is designed to protect consumers from confusion and deception. However, companies may only be forced to disclose factual and uncontroversial information.
Judge Leon believes that the images are anything but uncontroversial, as they are designed to evoke emotion. As a result, the graphic cigarette warning regulation must be narrowly tailored to achieve the agency's goal.
The new cigarette labels are not narrowly tailored, according to the judge. He describes them as "mini-billboards" and unnecessarily large. He therefore believes that they go beyond the scope of the government's power.
While this might ultimately be true, chances are the FDA will appeal the decision. An appellate court, or the Supreme Court, could disagree with Judge Leon's decision. You should expect the FDA's graphic cigarette warnings to face a long, drawn-out battle.