U.S. District Judge Richard Leon stayed the implementation of a Federal requirement effective next year which mandates tobacco companies to put graphic images on their cigarette packages. Judge Leon blocked the requirement in order "to evaluate on merits the constitutionality of the commercial speech that these graphic images compel. "
"Although it is true that Congress mandated the new images to occupy the top 50% of the front and back panels of all cigarette packages and the top 20% of printed advertising, Act § 201(a) (amending 15 U.S.C. § 1333(a)(2),(b)(2)), and charged the FDA with implementing a final rule consistent with its mandate doing so does not enable this requirement to somehow automatically pass constitutional muster. Appropriating the top 50% of the front and back of all cigarette packages manufactured and distributed in the United States is hardly a directive narrowly designed to achieve the Government's purpose (whatever it might be). To the contrary, the dimensions alone strongly suggest that the Rule was designed to achieve the very objective articulated by the Secretary of Health and Human Services: to "rebrand[ ] our cigarette packs," treating (as the FDA Commissioner announced last year) "every single pack of cigarettes in our country" as a "mini-billboard. A "mini-billboard," indeed, for its obvious anti-smoking agenda!"
The case is R.J. Reynolds Tobacco Co. v. FDA, No. 11-1482 (RJL), slip op. (D.D.C. Nov. 7, 2011).