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.