“Congress required nine labels. FDA wrote eleven—only two of which use Congress’s words. Since neither eleven nor two is nine, the district court was right.”
—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Fifth Circuit to uphold a lower court decision that prevents the Food and Drug Administration (FDA) from imposing graphic warning labels on cigarette packaging and advertisements.

The case arises from the Tobacco Control Act, which provided text for nine new tobacco warning labels and told FDA to create accompanying graphics. FDA created graphics, but for a totally different set of eleven warnings. Only two of FDA’s warnings use Congress’s actual words. The district court ruled FDA’s improv was unlawful, and issued a preliminary injunction. FDA appealed, claiming that its actions are consistent with the Act.

WLF’s amicus brief explains why the district court’s judgment should be affirmed. If Congress provides nine specifically scripted disclaimers, FDA has no power to change that number of warnings or alter their wording. The brief also argues that even if FDA’s work was permissible, the court should still uphold the injunction on constitutional grounds. The new labeling regime is government compelled speech, which generally violates the First Amendment. As the brief says, “The Supreme Court has instructed that ‘where the First Amendment is implicated, the tie goes to the speaker, not the censor.’ Censors and compellers do not get the benefit of the doubt.”