FDA Petitions D.C. Circuit for Rehearing on Cigarette Graphic Warnings

By Ricardo Carvajal –

A few weeks ago, we posted on a decision by a divided three-judge panel of the D.C. Circuit Court of Appeals vacating FDA’s regulations that require graphic warnings on cigarette packages (see here).  FDA has now petitioned the D.C. Circuit Court of Appeals for rehearing and rehearing en banc.

The petition draws heavily on the administrative record and the dissent to the panel’s decision to argue that the proposed graphic warnings are an effective means of conveying the health risks of smoking, and “directly advance a crucial government interest” without imposing undue burdens on industry.  Rejecting the majority’s characterization of the warnings as “subjective – and perhaps even ideological,” the petition contends that the “extraordinary health risks identified in the warning text are indisputably accurate, and substantial evidence shows that the graphics help to ensure that this accurate health risk information is noticed and understood.”  The petition further argues that the majority erred in considering the images selected by the agency divorced from their accompanying text, and that the fact that the images “’evoke emotion… does not mean that the health warnings are inaccurate.”  The petition closes with a flourish borrowed from the dissent:

[N]othing in the Supreme Court’s commercial speech precedent would restrict the government to conveying these risks in ways that have already proved ineffective or would prohibit the government from employing the communication tools tobacco companies have wielded to great effect over the years.

We’ll continue to monitor this case as it inches closer to the Supreme Court.