On April 3, 2020, several tobacco companies, including R.J. Reynolds, Imperial and Liggett, filed suit in a Texas federal court challenging the U.S. Food and Drug Administration’s (“FDA”) March 2020 rule requiring the placement of graphic warnings on cigarette packaging and advertising (“the Rule”).
This is the FDA’s second attempt to enact requirements relating to graphic cigarette warnings pursuant to the 2009 Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”). The first rule was struck down by the federal court in the District of Columbia as a violation of the First Amendment. The plaintiffs in this case state that this version of the FDA’s rule is no improvement and urge the Texas court to “break this cycle by striking down both the Rule” and the Tobacco Control Act’s graphic-warnings requirement as violations of the First Amendment.
The new rule includes eleven graphic images paired with textual warnings. Among the images paired with the warnings are depictions of an individual with neck cancer, ill children, and bloody urine. The companies allege that FDA’s required warnings force plaintiffs to become a “mouthpiece for the government’s anti-smoking advocacy” and are “precisely the type of compelled speech that the First Amendment prohibits.”
If the court rejects this challenge, the Rule will go into effect June 18, 2021. We will continue to monitor future updates.