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FDA appeals preliminary injunction of new anti-smoking packaging graphics

WASHINGTON — The Food and Drug Administration on Tuesday appealed a recent District Court ruling that had placed a preliminary injunction on new, graphic anti-smoking messages that were to be placed on cigarette packaging as of September 2012. The five tobacco company plaintiffs argued that the mandated graphics violate the First Amendment.

The appeal moves the case to to the U.S. Court of Appeals for the D.C. Circuit.

The FDA on Oct. 21 had filed a motion for summary judgement, asserting that the tobacco companies had no basis for their First Amendment violation claims.

"Congress does not infringe on protected First Amendment interests when it requires accurate disclosures in marketing," the agency stated in a memorandum supporting its motion. "Only by ignoring the findings of Congress, the courts, and countless public health officials, can plaintiffs discount the compelling governmental interest in communicating health risks to consumers and potential consumers of their product — including the underage and often undereducated persons who constitute the bulk of their new clientele. And only by ignoring the record before Congress, and the overwhelming international consensus of public health officials, can plaintiffs attempt to claim that a text-only disclosure of the same size as the current surgeon general warnings could communicate the health risks of smoking as effectively as the revised warnings prescribed by Congress."

The new anti-smoking graphics were required to cover the top half of the front and back of cigarette packs and 20% of printed advertisements and depicted the health consequences of smoking, including graphic images of diseased organs and dead bodies.


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