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Judge blocks graphic images on cigarette packages

WASHINGTON — A federal judge has blocked the government from requiring tobacco companies to begin placing images of diseased lungs and cadavers on cigarette packages, saying the health warnings violate the companies' First Amendment rights.

U.S. District Judge Richard Leon, in a 29-page ruling Monday, granted the preliminary injunction because he believes there is a "substantial likelihood" the cigarette companies ultimately would win "on the merits of their position that these mandatory graphic images unconstitutionally compel speech."

He also said the images go beyond disseminating "purely factual and uncontroversial information" and venture into advocacy.

The Food and Drug Administration rule, authorized by Congress in 2009 and slated to go into effect in September, now is likely to be embroiled in a legal dispute for months or years.

The images include an infant in an incubator, a man breathing through a respirator and a man breathing through a hole in his throat. Warnings such as "Tobacco smoke can harm your children" appear next to the images.

The cigarettemakers suing the FDA are R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Liggett Group and Santa Fe Natural Tobacco Co.

James Wheaton, a First Amendment expert who teaches at the University of California at Berkeley and who has sued tobacco companies over what he says are inadequate warnings, agreed with the judge.

"You can't force a company to carry the government's opinion on an issue," Wheaton said. "These images are clearly not limited to a statement of fact. They're designed to evoke an emotional response."

But Matthew Myers, president of the Campaign for Tobacco-Free Kids, cited studies, such as one completed by Canada's University of Waterloo in May, showing that graphic images are most effective at getting the attention of young people. Thus, he said, they should be a permissible way to inform the public.

Rep. Henry Waxman, D-Calif., expressed confidence that the FDA ultimately will be permitted to require the graphic warnings. He said that Congress "considered the First Amendment issues involved and carefully tailored the legislation to ensure the FDA could act" as it proposed.

The FDA declined to comment on the ruling.

Judge blocks graphic images on cigarette packages 11/07/11 [Last modified: Monday, November 7, 2011 11:29pm]

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