Federal Judge Blocks New Cigarette Warning Labels

Today U.S. District Judge Richard Leon blocked enforcement of the Food and Drug Administration's new warning label requirements for cigarettes, having concluded that tobacco companies are likely to prevail in their argument that the mandate violates the First Amendment. The new labels, which feature ghastly pictures, would occupy 20 percent of print ads as well as the top half of cigarette packages on the front and back. Cigarette manufacturers say they are an unconstitutional form of compelled speech, propagandizing against smoking instead of merely informing consumers about the relevant risks. In issuing a temporary injunction, Leon indicated he is inclined to agree, ruling that the challenged regulations must satisfy "strict scrutiny," which requires that they be narrowly tailored to advance a compelling government interest:

The evidence here overwhelmingly suggests that the Rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under [a] less stringent standard....The Government's primary purpose is not, as it claims, merely to inform....Instead of focusing on its  own alleged primary goal—providing information to consumers—the Government effectively admits that it looked only to relative impact [of the various proposed labels], thus side-stepping the basic question of whether any singular graphic warning was effective on its own terms. This fundamental  failure, coupled with the Government's emphasis on the images' ability to provoke emotion, strongly suggests that the Government's actual purpose is not to inform, but rather to advocate a change in consumer behavior.

Leon adds that "the Rule hardly appears to be narrowly tailored to achieve the Government's purpose," given "the content of  the graphic images" and their "sheer size and display requirements." In short, he writes, "the Government has neither carried its burden of  demonstrating a compelling interest, nor demonstrated how the Rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech." 

The labels, which the Family Smoking Prevention and Tobacco Control Act of 2009 charged the FDA with creating, were supposed to start appearing next September. Leon's decision is here.

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  • Tim||

    How would we know what to think if government didn't tell us?

  • Live Free or Diet||

    What did you think the whole zombie genre is a metaphor for?
    The brainless, whose only remaining purpose is to deny you yours.
    "Brains!
    LFoD

  • Tim||

    Zombies who still smoke, that would be chilling.

  • ||

    Denis Leary: It doesn't matter how big the warnings on the cigarettes are; you could have a black pack, with a skull and crossbones on the front, called TUMORS, and smokers would be around the block going, "I can't wait to get my hands on these fucking things! I bet ya get a tumor as soon as you light up!"

  • ||

    Is that a picture of President Obama?

  • Suki||

    +1 racist.

  • The Amish||

    Has anyone told you lately that you're irrelevant?

  • ||

    Is that a picture of President Obama?

    That is so (not) racist, Pro'L Dib. I LOL'd.

    If it was Boehner, you could have made an Orange Brigade reference.

  • ||

    There's something kinda Obamanesque about the guy's chin or something. I wasn't being entirely snarky.

  • ||

    I was about to ask the same thing.

    Don't smoke kids, or you might become a president with a hole in your throat.

  • ||

    I wonder if it's illegal to portray a sitting president with a hole in his throat?

  • ||

    or a hole in the head (ala, the zombie advertisement).

  • Live Free or Diet||

    I thought of that. I hadn't decided how to use the idea yet.

  • Colonel_Angus||

    Punks did it.

  • Suki||

    Would have been better of they used this. Of course this would not be right.

  • ¢||

    Is that a picture of President Obama?

    He can't grow a mustache.

    B) I was really looking forward to collecting this whole The Shitty Lives of Black People trading card series.

    Fuckin' judicial activism.

  • Suki||

    The LaRouche Democrats took care of the mustache thing already.

  • ||

    Another de facto amendment to the Constitution by Our Robed Masters.

    The 1A now reads "Congress shall pass no law that is not narrowly tailored to advance a compelling governmental interest . . . ."

    You can't tell me that "narrowly tailored, etc." is an interpretation of "pass no law". Its an amendment, straight up.

  • Apatheist||

    I depends on how you define the word no RC... or something.

  • ||

    It just pisses me off, is all. Sure, you can interpret the hell out of a document within the bounds of the text, but there are limits, and its a shame the SCOTUS long ago lost the balls to tell the world "Gosh, I'm sure that piece of legislation would be wonderful, and we'd like to see it enacted, personally, but first you're going to have to amend the Constitution."

    Fuck, they did it for Prohibition, and then . . . poof.

  • Reformed Republican||

    Looking at that pic, cigarettes must be pretty awesome. Nothing is going to stop that dude from smoking. I think I should try it.

  • ||

    Any smoker I know is already aware of the risks - heck, the stuff was *pounded* in our heads at a young age. When I was a kid, I used to harangue my old man about his smoking.

    When I was 15, I started smoking but only 4-5 ciggies a day. Since then that number had declined, but I've never really given it up, though now I can go for months and months without a cigarette. But once I'm drinking beer with friends who smoke, I suddenly have the urge for some nicotine. Other than that, I don't need the stuff.

    So no, I don't really worry about cancer, or other smoking related illnesses.

  • ||

    Yup, this resembles lots of people I know as well, noble sir. People who have a few a day, mostly when having some drinks. But the last thing in the world the nannies want is people realizing there are different risk levels. If you have 1 cigarette you are going to die! And also killing children! So now it's ok to fuck you with taxes, because your particular indulgence is currently out of favor with the nannying types.

  • Suki||

    BTW, love your handle!

  • Apatheist||

    I hav 2 or 3 a day and aim to get to 1 a day at most. Even if I quit entirely I'm not going to stop having cigars on occasion or setting up my hookah on weekends. Nobody needs to tell me that smoking is bad but HOW BAD is dependent on your usage rate and consumption method.

  • Eduard van Haalen||

    What's your hookah's name? Ashley?

    (I didn't even mean that as a double pun, how interesting.)

  • Apatheist||

    Do people name hookah's like they do their bongs? I'll have to consider one but I own it jointly with my fiancee so I doubt it'll be ashley.

    That was a good double pun, intended or not.

  • ||

    Get an e-cigarette / e-cigar and enjoy your nicotine guilt free however many times you want each day.

  • Apatheist||

    I don't feel guilt and I like the taste (I smoke nice hand rolleds or cloves when someone brings me some from overseas). I've considered it but they are a pretty big capital investment.

  • ||

    There are some good clove-flavored and cigar-flavored e-cigarette liquids. Tobacco is hard to replicate, but not so much with other smokes.

    It is an investment, but I love mine to death and have saved a lot in the long run even though I wasn't a heavy smoker.

  • EDG reppin' LBC||

    Smoke too much. Drink too much. Worry about dying from cancer. Get run over by a Soccer Mom as she texts behind the wheel. FTW.

  • Tim||

    How does oral sex work when you have one of those holes?

  • ||

    Tim, who would have guessed you were into leathery man-jowls. I think it would work well, because you wouldn't have to breathe through your nose the whole time. Unless you want to throatfuck the hole, in which case I suggest talking to SugarFree. It sounds like something he is likely to have written about.

  • Tim||

    I was going into Sugarfree territory I know, and I assure you that if I had known a Lady was present I would have held off.
    On the other hand you read that and immediately thought "Sugarfree" so what does that say.

  • Tim||

    In fact, didn't everybody think "Sugarfree" ? Nobody thought "John" or "Pro Libertate" that's for certain.

  • ||

    Hey, I am the one who found herself typing "throatfuck the hole." Very ladylike.

  • Tim||

    Sugar has much to answer for.

  • Suki||

    I thought all of SugarFree's theories were based on Rule 34?

  • Throatfuck the hole||

    Rule 34?

  • Suki||

  • Tim||

    I apologize to all the Ladies present, and I hope you will not come forward in 15 years to scuttle my presidential campaign.

  • JD||

    Unless you want to throatfuck the hole, in which case I suggest talking to SugarFree. It sounds like something he is likely to have written about.

    If there is any kind of hole that exists or can be created in the human body, some guy has stuck his penis in it.

    Stories of sexually-transmitted infections of colostomies are especially common among ER personnel--rumor is some johns will pay extra for a hooker who can provide such a service.

    Everyone have a nice dinner!

  • Toxteth O'Grady||

    This is why no one takes Libertarianism seriously. Grow up.

  • Apatheist||

    Thanks Killjoy McBuzzkill.

  • Suki||

    +1

  • Tim||

    Doubtless, of all the places this thread could have gone, Sullum didn't see that one coming.

  • ||

    I'm sure the guy in the picture hasn't had his hummers affected at all by his new blowhole.

  • Smoker Without Portfolio||

    Yay.

  • ||

  • ||

    That was for Tim: "How does oral sex work when you have one of those holes?"

  • Tim||

    I;m afraid to click on that.

  • ||

    It's supposed to go to the definition from the Urban Dictionary.

  • Mr. Mark||

    Wrong, wrong, wrong to stand in the way of this advertising requirement.

    And here's why: Imagine if we could force it to be applied to ballots in an election? I'm not sure what kind of picture you'd need to use to illustrate a concept like, "If you vote for Obama to be re-elected, the national debt will displace Dark Matter as the largest component of matter in the universe," but you can bet it would need to be something pretty dramatic.

  • ||

    The debt isn't matter. It's negative energy. The cosmological insult.

  • ||

    On the other hand you read that and immediately thought "Sugarfree" so what does that say.

    That we are in complete agreement and The Singularity is a smashing success?

  • Throatfuck the hole||

    These are the endtimes.

  • Eduard van Haalen||

    I'm so glad nobody hijacked this thread. The trolls were probably like, "no, this is too weird."

  • Suki||

    They are busy pretending to protest, or whatever they do in Manhattan between eating free, sleeping, spamming and not bathing.

  • ||

    Ye gods. I don't think you have to be a troll to think that.

  • Brett L||

    Wait, so Sugarfree's slashfic is really a troll repellant? I thought it was only good for searing off little bits of my soul I hadn't destroyed myself.

  • Brett L||

    And yes, I realize that Himself didn't have to show up, so I should perhaps say slashfic in the vein of Sugarfree's...

  • ||

    It's worth noting that Judge Richard Leon is the same wise judge who found that the FDA did not have the authority to ban electronic cigarettes. His ruling was affirmed 3-0 by the Court of Appeals.

    Like then, the Campaign for Tobacco Free Kids put out a press release today saying his ruling is wrong on science and wrong on law ... all without specifying why he was wrong on the science or the law. When commenters mentioned this on their Facebook page, the posts were removed and the posters were banned.

  • jtuf||

    Thank goodness.

  • Sheesh||

    Federal Judge Blocks New Cigarette Warning Labels...

    ...Libertarians look gift horse in throat hole.

  • FatherBrain||

    I'm delighted with this ruling, and I would argue that even the most strident anti-smoking activist should oppose these labels, if for no other reason than that are quite likely to backfire: see http://fatherbrain.blogspot.co.....-chic.html

  • ||

    This is a issue of authority of congress to force companies to label their products in a certain way rather than a freedom of speech issue since where congress makes discussion of public affairs a seditious crime:

    http://www.federalistblog.us/2.....the_press/

  • Joe M||

    It's always confusing when someone in power repudiates government nonsense.

  • grinding plant||

    Like then, the Campaign for Tobacco Free Kids put out a press release today saying his ruling is wrong on science and wrong on law ... all without specifying why he was wrong on the science or the law. When commenters mentioned this on their Facebook page, the posts were removed and the posters were banned.

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