U.S. Government Asks Court to Rehear Challenge to FDA’s Graphic Cigarette Labels

The U.S. Justice Department has asked a federal appeals court to rehear a case about the Food and Drug Administration’s (FDA) requirement that tobacco companies place graphic labels on cigarette packages to warn about smoking’s health dangers. In August, a three-judge appeals court panel affirmed a lower court ruling that blocked the mandate.

The Justice Department is asking the full appeals court to rehear the case, USA Today reports. The U.S. Court of Appeals in Washington rarely grants such appeals, the newspaper notes.

After the FDA required the labels, tobacco companies sued to block them, arguing that the warnings were not factual information, but instead were anti-smoking advocacy. The labels include graphic images of the consequences of smoking, including diseased lungs and rotting teeth. The FDA wants the disturbing pictures to cover at least half of the front and back of a cigarette package. The FDA also said the images must take up to at least 20 percent of each cigarette ad. The new cigarette labels were a result of the 2009 Family Smoking Prevention and Tobacco Control Act, which gave the FDA authority to regulate the content, marketing and sale of tobacco products.

According to the appeals court panel, the case raises “novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest — in this case, by making ‘every single pack of cigarettes in the country (a) mini billboard’ for the government’s anti-smoking message.”

The FDA “has not provided a shred of evidence” showing that the warnings will directly influence the number of Americans who smoke, the court wrote.

The Justice Department argues that the new warnings are “indisputably accurate” and the labels’ format is designed to reach a “market in which the vast majority of users become addicted to a lethal product before age 18.”