Graphic Tobacco Warnings Stricken - Supreme Court Next Stop

Taking freedom too far, the United States Court of Appeals for the D.C. Circuit handed R.J. Reynolds a major victory.  The FDA, despite statutory authority, may not compel cigarette packages to carry graphic warnings.  You've seen them: the man blowing smoke through the hole in his throat, etc.  The majority opinion in R.J. Reynolds v. FDA embraces the view of the five tobacco companies who assail the Family Smoking Prevention and Tobacco Control Act (2009) arguing:

“[B]y effectively shouting well-understood information to consumers,” they explain, “FDA is communicating an ideological message, a point of view on how people should live their lives: that the risks from smoking outweigh the pleasure that smokers derive from it, and that smokers make bad personal decisions, and should stop smoking.”  In effect, the graphic images are not warnings, but admonitions: “[D]on’t buy or use this product.”

Viewing the images as compelled speech the majority declares

These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers.  They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.

 Such"speech" cannot be compelled under the First Amendment in the two judges' view.  The dissent embraces the "less exacting scrutiny" standard of  Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, 471 U.S. 626, 650–51 (1985):

Because the warning labels present factually accurate information and address misleading commercial speech, as in the district court, the tobacco companies sought injunctive relief and challenged the label warning requirement under the First Amendment and the Administrative Procedure Act (“APA”). ... Zauderer scrutiny applies, and the government need show only that the warning label requirement is reasonably related to its stated and substantial interest in effectively conveying this information to consumers.

But in Discount Tobacco City v. U.S.  the United States Court of Appeals for the 6th Circuit has upheld (2-1)  the Act's graphical requirements at 15 U.S.C. 1333 because it compels only statements of fact:

whether a disclosure is scrutinized under Zauderer turns on whether the disclosure conveys factual information or an opinion, not on whether the disclosure emotionally affects its audience or incites controversy. Because graphics can present factual information regarding the health risks of using tobacco, because this information alleviates the possibility of consumer confusion, the Act’s graphic-warning requirement is constitutional under Zauderer.

Because there is now a firmly developed conflict between Circuit Courts of Appeals, the Supreme Court, in exercise of its supervisory authority.  The Act preempts all state warning requirements.