U.S. Court of Appeals for the D.C. Circuit

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Case Updates

D.C. Circuit rules that FDA's “graphic warnings” violate the First Amendment

August 24, 2012

The D.C. Circuit affirmed the lower court's ruling, and vacated the FDA's graphic warnings requirements.

U.S. Chamber files amicus brief

January 30, 2012

NCLC urged the U.S. Court of Appeals for the DC Circuit to hold that the government cannot compel a business to use its own product packaging and resources to promote a government message designed to discourage consumers from choosing to buy lawfully available products. In this case, the Food and Drug Administration published a final regulation in June of 2011 - pursuant to the Family Smoking Prevention Control Act - requiring tobacco companies to include graphic warning images taking up at least 50 percent of the tobacco packaging.

In its amicus brief, NCLC explained that the Chamber supports reasonable government efforts to police fraud and misrepresentation in interstate commerce and to require narrowly tailored, objective disclosures or warnings that are necessary to permit consumers to use lawfully marketed goods and services safely. However, NCLC's brief argued that the FDA's graphic warning regulation represents a radical departure from traditional government regulatory efforts. Whatever authority the government might have consistent with the First Amendment to require truthful and non-misleading disclosures and to, in sufficiently compelling circumstances, require narrowly tailored warnings that are objectively necessary to make a lawful product or service safe (or less potentially dangerous) consistent with its intended use, the government has no legitimate authority to commandeer the space on the seller’s packaging or advertising for the purpose of putting a thumb on the scale of consumer choice and persuading consumers not to buy the product or service.

NCLC amicus brief filed 1/30/12. Decided 8/24/12.

FDA petition for rehearing en banc filed 10/9/12. Opposition to rehearing filed 10/29/12.

Case Documents