#1]. In June 2011, defendant United States Food and Drug Administration ("FDA")published a Final Rule requiring (among other things) the display
nine new textualwarnings -along with certain graphic images
such as diseased lungs and a cadaverbearing chest staples on an autopsy table -on the top 50%
the front and back panels
every cigarette package manufactured and distributed
the United States on or afterSeptember
FDA, Required Warnings for Cigarette Packages andAdvertisements, 76 Fed. Reg. 36,628 (June 22, 2011) ("the Rule");
PIs.' Mot. forPreliminary Injunction ("Mot. for PI"), Aug. 19, 2011, at
[Dkt. # 11]. Alleging thatthe Rule violates the First Amendment and the Administrative Procedure Act ("AP A"), 5U.S.C.
553(b)(3), 705, 706(2)(A),
5-6, plaintiffs now seek apreliminary injunction against the FDA, the Secretary
the U.S. Department
Healthand Human Services ("the Secretary"), and the Commissioner
("theCommissioner" and together, "defendants" or "the Government"), to enjoin enforcement
the Rule until fifteen months
plaintiffs' claims on the merits.
Mot.for PI at
5-6. As such, plaintiffs raise for the first time in our Circuit the question
new and mandatory graphic images, when combined with certainThe FDA conveniently refers to these graphic images as "graphic warnings."While characterizing the mandatory textual statements as "warnings" seems to be a fairand accurate description, characterizing these graphic images as "warnings" strikes me asinaccurate and unfair. At first blush, they appear to be more about shocking and repellingthan warning. Accordingly, I will refer to them simply as graphic images, and set thisself-serving "warning" label aside for closer analysis on another day.Plaintiffs filed a Motion for Summary Judgment [Dkt. # 1
on the same day theyfiled their Motion for Preliminary Injunction [Dkt. # 11]. The Motion for SummaryJudgment, however, is not before the Court today.
Case 1:11-cv-01482-RJL Document 38 Filed 11/07/11 Page 2 of 29