Judge Blocks Graphic Cigarette Warnings - NYTimes.com

Judge Blocks Graphic Cigarette Warnings - NYTimes.com: "WASHINGTON (Reuters) - A federal judge blocked a rule requiring tobacco companies to display graphic images on cigarette packs, such as a man exhaling cigarette smoke through a hole in his throat.
District Judge Richard Leon sided on Monday with tobacco companies and granted a temporary injunction, saying they would likely prevail in their lawsuit challenging the requirement as unconstitutional because it compels speech in violation of the First Amendment."  
Leon wrote:  "It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information."
The opinion and order staying enforcement of the Rule in R.J. Reynolds v. U.S. FDA is HERE.  


Floyd Abrams and Prof. Steve Shiffrin debate the issue on NPR HERE
h/t Drug and Device Law Blog

'via Blog this'

Graphic warnings: the FDA's proposed new labels on cigarette packs

HERE are the new graphic warnings.  Ey-catching.  But are they effective?  Adequate?  Compared ot other countries?  Look HERE.

Until 2009 when President Obama signed the Family Smoking Prevention and Tobacco Control Act of 2009 that enabled some FDA regulation the only permitted warnings on cigarettes and in cigarette advertising were those prescribed by statute.  The original warning  was set in the Public Health Cigarette Smoking Act of 1969,  15 U. S. C. §§ 1331-134 which provided: 

WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH

The 1969 Act of Congress also provided

"No requirement or prohibition based on smoking and health shall be imposed under State law with respect  to the advertising or promotion of any cigarettes the packages of which are [lawfully] labeled."

In 1992 in Cippollone v. Liggett The Supreme Court held that  state product liability could not permit a jury to find that warning inadequate because such a verdict would be a  "requirement" beyond what Congress specified.  Thus all tobacco claims - except for those based on fraud - were preempted by federal law.  No "failure to warn" claims were permitted.

If state tort suits had been permitted for "failure to warn" what obstacles would plaintiffs have faced?