Today R.J. Reynolds’ preemptive attack on the latest power play by the Food and Drug Administration (“FDA”) to destroy the tobacco industry is to be heard by Judge Leon in the District Court of D.C. See The Legal Times Blog Post, dated August 19, 2011, for more details. The FDA is seeking to enforce its Final Rule that would require tobacco companies to place graphic images on its cigarette packages. See FDA, Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,368. These are not ordinary illustrations as one of the images is of a dead body post autopsy.
In seeking a preliminary injunction the companies put forth two main arguments; first, the images themselves and their placement on the packages are an impingement on the companies’ First Amendment rights and amount to government speech. Secondly, the truncated timeline for compliance would result in millions of dollars of expenses for a regulation that has a substantial likelihood of being unconstitutional. However, whether the warnings are unconstitutional may not be as substantially likely as the companies argue.
We find out today whether Judge Leon believes the companies’ position. If I were a gambling man, I may bet that the preliminary injunction is granted. After all, the companies have filed a challenge to the rule and you cannot reclaim millions of dollars after they have been expended. What are your thoughts? Check back later for an update regarding Judge Leon’s decision.