On June 22, 2011, the FDA published a final rule requiring nine text warnings and graphic images to be printed on the top 50% of the front and back of cigarette packages, the left 50% of the front and back of cigarette cartons and the top 20% of all printed cigarette advertisements. The new text and graphic-image warning labels were supposed to take effect by September 22, 2012.
However, a federal district court lawsuit, filed by five tobacco manufacturers, challenged the constitutionality of the graphic warning images – and resulted in a court decision on November 7, 2011, granting a temporary injunction against the implementation of the new warnings. The federal district court judge determined that the tobacco manufacturers would likely prevail in the lawsuit because the First Amendment to the U.S. Constitution protects free speech -- including commercial speech such as advertising. Also, the judge determined that the images were unconstitutionally "compelled speech," because the text and graphic images were designed to compel the manufacturers to "speak" to consumers so that they would quit or never start smoking -- rather than to just simply provide factual health information.
On November 29, 2011, the FDA appealed the temporary injunction ruling to the U.S. Circuit Court of Appeals and a group of 24 state attorneys general have since filed a "friend of the court" brief with the appeals court in support of the government's graphic image labels. In response, the tobacco manufacturers have asked the federal district court judge for an expedited decision on the company's main part of the lawsuit involving a summary judgment motion to declare the graphic health warnings to be unconstitutional.
The federal district court decision not only issued a temporary injunction against the FDA's cigarette text and graphic image warnings, but also imposed a stay on the implementation of the health warning regulations until 15 months after a final ruling on the merits of the claims in the lawsuit. This means that while the case is on appeal, the manufacturers will not be required to place the graphic images on cigarette packaging or in cigarette advertisements -- nor will retailers be required to include the graphic warnings on cigarette advertisements they produce.
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