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Supreme Court Declines to Hear Challenge to FDA Graphic Warning Label Requirement

On April 22, 2013, the United States Supreme Court denied a petition for writ of certiorari in a First Amendment challenge to the 2009 Family Smoking Prevention and Tobacco Control Act’s graphic warning label requirement.  The law requires that cigarette packages display graphic warning labels covering 20 to 50 percent of the product packaging.

In a November 2012 blog post, we reported that several tobacco product manufacturers and a retailer requested that the Supreme Court consider their challenge to FDA’s requirement for graphic warning labels on cigarette packages.  The tobacco companies requested the Supreme Court reverse the Sixth Circuit Court of Appeals’ decision finding that the warning label requirement does not violate the First Amendment of the United States Constitution.

The Sixth Circuit approved the Tobacco Control Act’s warning label requirement.  The Sixth Circuit’s March 2012 ruling also upheld the district court’s ruling that tobacco companies may market it product as “mild” or “light” only after receiving approval from FDA.

The tobacco companies’ request for Supreme Court review of the Sixth Circuit decision came shortly after FDA’s request for rehearing of the D.C. Circuit Appeals’ decision finding that the graphic warning label requirement was constitutional.  The D.C. Circuit case involved a slightly different issue because it was an applied challenge to the warning labels (that is, after FDA determined the labels’ content); whereas, the Sixth Circuit case involved a facial challenge to the warning label requirement (that is, before FDA determined the labels’ content).  Last month, FDA decided not to pursue Supreme Court review of the D.C. Circuit ruling.

The Supreme Court has discretion whether to hear a case, and it hears a very small fraction of the requested appeals.

For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.

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