The Supreme Court declined Monday to hear a challenge from major tobacco companies to the Food and Drug Administration’s requirement that they place graphic health warnings on cigarette packages and in advertisements.
The FDA issued a rule in 2020 that requires health warnings on cigarette packages and in advertisements, occupying the top 50% of the area on the front and back panels of packages and at least 20% of the area at the top of cigarette ads, according to the FDA.
Among the 11 text-and-image graphics created by the agency for compliance with the rule is one that depicts a human lung and reads, “WARNING: Tobacco smoke causes fatal lung disease in nonsmokers,” and another that includes an illustration of a boy holding an oxygen mask that says: “WARNING: Tobacco smoke can harm your children.”
Several major tobacco sellers, including the R.J. Reynolds Tobacco Company, sued, arguing that the warnings run afoul of the First Amendment and that the agency violated federal rulemaking procedures when it issued it.
A federal judge in Texas initially sided with the companies and wiped away the rule. But the conservative-leaning 5th US Circuit Court of Appeals reversed that decision and ruled in favor of the FDA.
The appeals court said in a unanimous ruling issued in March that the rule “passes constitutional muster” under a decades-old Supreme Court standard that allows the government to compel commercial speech so long as the speech is “purely factual,” “uncontroversial,” “justified by a legitimate state interest” and “not unduly burdensome.”
The court sent the case back to the lower court for further review, but the companies appealed to the Supreme Court before the proceedings could restart.
Lawyers for the tobacco companies told the justices in court papers that the warnings required by the rule “are unprecedented in American history” and warned that if the appeals court ruling is allowed to stand, it would give the government permission to require similar warnings on a range of products “in order to bully consumers into not using them.”
They also argued that the warning illustrations “are designed to shock rather than inform, because the massive and inflammatory graphics go far beyond what would be necessary to communicate a simple factual message.”
The Biden administration urged the high court to not step into the case, arguing that the appeals court was right to revive the rule “because the warnings are reasonably related to the government’s interest in promoting public understanding of those risks (associated with tobacco) and are not unduly burdensome.”
Attorneys for the government also said that the Supreme Court should not take up the case now since the trial-level court has yet to rule on the companies’ claim that the FDA violated federal rulemaking procedures when it issued the new requirements.
It’s possible that the case could reach the high court again after it works its way through the lower courts.
