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FDA to Big Tobacco: You already lost fight over graphic labels’ANV

If you haven’t already seen the images that the Food and Drug Administration will require tobacco companies to include on cigarette packages, take a look. They’re disgusting: rotting teeth and gums, blackened lungs, a patient with a Frankenstein scar running down his chest. Congress’s 2009 Smoking Prevention and Tobacco Control Act, the first update of cigarette warning labels since 1984, was supposed to give the FDA the power to depict the health consequences of smoking with color graphics. These labels, approved in June after a two-year rule-making process, sure do that.

In August, a group of tobacco companies claimed that the new labels violate the industry’s constitutional rights. In a 41-page complaint filed in Washington, D.C., federal district court, the tobacco companies argued that the labels are an unprecedented attempt to force them to serve as mouthpieces for the government’s anti-smoking message. “This is precisely the type of controlled speech that the First Amendment prohibits,” the complaint claimed. “While the government may require plaintiffs to provide purely factual and uncontroversial information to inform consumers about the risks of tobacco products, it may not require [tobacco companies] to advocate against the purchase of their own lawful products.”

The complaint asks for a declaratory judgment that the tobacco labels are unconstitutional and a preliminary injunction blocking the FDA from implementing the new labeling rules.

But as the FDA pointed out in a 55-page response Friday, there’s a bit of a roadblock in the industry’s way. To win a preliminary injunction, the tobacco companies have to show that they’re likely to succeed on the merits of their First Amendment argument. That will be very tough, the FDA argued, since they’ve already lost that case. In 2009, three of the plaintiffs in the declaratory judgment suit were part of a different coalition of tobacco companies that sued the FDA in Bowling Green, Ky., federal court, raising First and Fifth Amendment challenges to the Tobacco Control Act. Ruling on cross-motions for summary judgment (after denying Big Tobacco’s preliminary injunction bid), Judge Joseph McKinley Jr., upheld the law’s constitutionality in a Jan. 10, 2010 ruling. (Both sides appealed aspects of the ruling; the U.S. Court of Appeals for the Sixth Circuit heard the appeal in July.)

The FDA argued that the new suit is simply a reboot of the old, failed case. “Plaintiffs’ new suit reprises arguments already considered and rejected in [the previous suit],” the filing said.

The tobacco companies-which represented by a crackerjack lineup of law firms, including Jones Day;Cahill Gordon & Reindel; Latham & WatkinsO’Melveny & Myers; and Covington & Burling-claim that the new suit is different from the old one because when they first sued, the FDA hadn’t settled on precisely which images tobacco products would carry. The FDA has countered that the industry considers any color graphic to be a violation of its First Amendment rights-an issue Judge McKinley has already decided.

D.C. judge Richard Leon will have to sort the whole thing out. I’ll let you know when he does.

(Reporting by Alison Frankel)

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