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In Graphic Warnings Case, Tobacco Lawyers Fight Full D.C. Circuit Review

Lawyers for major tobacco companies said Monday they do not want the full U.S. Court of Appeals for the D.C. Circuit to touch a panel’s ruling that went against the government’s controversial graphic warning labels requirement.

A divided three-judge panel of the D.C. Circuit in August ruled against the U.S. Food and Drug Administration’s requirement that cigarette packs carry graphic images that depict the dangers of smoking. Judge Janice Rogers Brown called the images “inflammatory” and said they were “unabashed attempts to evoke emotion.” The court said the proposed warning images violate the First Amendment.

The U.S. Justice Department wants the full D.C. Circuit to overturn the panel decision. Yesterday, responding to DOJ, lawyers for tobacco companies that include R.J. Reynolds and Lorillard urged the D.C. Circuit not to tangle with the panel decision. Ultimately, the U.S. Supreme Court could be asked for its assessment.

“The proposed warnings will not create more informed consumers and were never intended to,” Jones Day litigation partner Noel Francisco, lead counsel for R.J. Reynolds Tobacco Co., said in a court filing Monday. Francisco also said the images “had no measurable effect on consumer knowledge of the smoking risks the warnings address.”

DOJ lawyers said in their request that the panel decision failed to recognize the government’s interest in “ensuring that consumers and potential consumers understand the health risks of smoking.”

The tobacco company lawyers, who also include a team from Covington & Burling who represent Lorillard, said in their response that the FDA’s graphic images rule was not meant to further that government interest.

“These warnings do not address any information deficit about the health risks of smoking. Rather, consumers are already aware of the health risks addressed by the warnings,” the tobacco company lawyers said in their papers.

The warning images, Francisco said in court papers, “were not selected based on their ability to increase consumer knowledge. Instead, they were intentionally crafted to attach ‘negative affect’ to cigarettes and convey a message to consumers that smoking is not a legitimate or acceptable personal choice.”

The U.S. Court of Appeals for the Sixth Circuit rejected a challenge to the requirements, DOJ lawyers said in their petition in the D.C. Circuit.

DOJ lawyers, including Mark Stern from the Civil Division’s appellate staff, said in court papers that the panel decision“boldly declared” that the First Amendment blocks the graphic image regulations because the government failed to show how the photos have directly caused a decrease in smoking rates.

“The government’s interest in effectively communicating the health risks of smoking cannot be overstated,” DOJ lawyers said in the request for a full-court review.

That a particular image evokes emotion, DOJ said, doesn’t make a health warning inaccurate. “The warning that tobacco smoke can harm a smoker’s children evokes emotion because the warning is true, and people do not want to harm their children,” DOJ said.

The full D.C. Circuit hasn’t decided whether it will hear the case. If the government loses, DOJ could decide to ask the Supreme Court to review the dispute.

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