On March 21, 2024, the Fifth Circuit held that a series of graphic warning labels an FDA rule imposes on tobacco manufacturers and retailers are “factual and uncontroversial,” thus satisfying the First Amendment. The decision was a setback for WLF, which filed an amicus brief urging affirmance of the trial court’s ruling. Emphasizing that the First Amendment fully protects the right both to speak and not to speak, WLF’s brief explained why the graphic warnings at issue here do not qualify as ordinary disclosures akin to those that the Supreme Court has upheld. Rather, they are the very sort of controversial, ideological messages that have nothing to do with preventing consumers from being misled.
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