Graphic Images on Cigarette Packs May Go Up in Smoke

A federal judge has blocked the implementation of a new FDA rule requiring the display of graphic images on cigarette packaging. The nine controversial photos are set to appear (along with accompanying text) on all cigarettes sold in the U.S. beginning in September of 2012. There’s no subtlety here. It’s a rotating gallery of unpleasant images meant to convey the dangers of smoking — everything from a set of diseased lungs to a man smoking through a hole in his throat. There’s even a post-autopsy sutured chest thrown in for good measure. Under the FDA rule, the warnings and the images must cover the top half of every pack of cigarettes, front and back. (More on Cigarette Health Warnings from the FDA.)    

This week’s granting of a preliminary injunction by U.S. District Judge Richard Leon does not amount to the overturning of the FDA rule itself. What the injunction does do is block the rule from taking effect until the lawsuit over the requirement is resolved; specifically, in Judge Leon’s words, until “the constitutionality of the commercial speech that these graphic images compel” can be evaluated.

Judge Leon’s granting of the preliminary injunction means that, here in the early stages of the lawsuit, the tobacco companies have made a strong argument that the FDA rule violates free speech. That argument goes like this: by requiring the display of these new graphic anti-smoking images on all cigarette packaging, the federal government is essentially — and unconstitutionally — forcing commercial speech on the part of the tobacco companies. The granting of the tobacco companies’ request for a preliminary injunction is obviously a win for R.J. Reynolds and friends. At the very least, it’s an early indication of which way Judge Leon is leaning on the larger issue of the rule’s constitutionality; an injunction like this is only issued when the party requesting it shows a “likelihood of success” on the merits of the lawsuit.

For now, when it comes to scaring smokers straight, it looks like the old standby Surgeon General’s Warning will just have to do.