On Monday, U.S. District Judge Richard Leon blocked a federal requirement that would have forced tobacco companies to put graphic images on their cigarette packages starting Sept. 22, 2012.
The FDA-approved graphics were to include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, a pair of diseased lungs next to a pair of healthy lungs, a cadaver on a table with post-autopsy chest staples and a plume of cigarette smoke enveloping an infant receiving a mother's kiss.
In his ruling, Judge Leon said that since a lawsuit by cigarette makers to block the images is likely to succeed, he would stop the requirement to post them at least until the matter is resolved in the courts, which could take years. He ruled that the pictures violated free speech and veered into advocacy.
In his 29-page opinion, Judge 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."
A lawyer representing Lorillard Tobacco Co., one of the cigarette makers that sued the FDA, said in a statement, "Today's ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products."
Steven Shiffrin of Cornell Law School told Larry Mantle that 400-thousand tobacco-related deaths and billions of dollars in medical costs each year are reason enough to allow the images.
"That is a very strong interest for government to require that these graphic representations be there. I don't think courts should be making ad-hoc determinations as to what is grotesque; I don't think they should be making ad-hoc determinations as to what is emotional," he said Tuesday.
The Justice Department has argued in the past that the images, along with written warnings, were meant to communicate the dangers of tobacco to youngsters and adults. But does the use of graphic images instead of words, cross some legal line?
Would these pictures have amounted to the government forcing tobacco companies to work against their own best interests? What are the arguments on each side and whose constitutional rights are in danger of being violated?
Floyd Abrams, partner in the New York law firm of Cahill Gordon & Reindel, representing Lorillard Tobacco Co.
Steven Shiffrin, professor of law at Cornell Law School