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Can new FDA graphic warning labels for tobacco pass a first amendment legal challenge?
Date:6/17/2013

would likely be analyzed under rational basis review and almost certainly prevail "if the courts decide the warnings combat the industry's past deception." He says some courts have also applied this review to uncontroversial, factual warnings, such as information intended to help consumers make healthier decisions.

The second possibility is intermediate review, which requires a stronger governmental interest and greater certainty that warning labels would be effective.

"Under this review, the FDA could likely win, but the case will turn on how well the government can convince the courts about certain empirical evidence," Kraemer explains. "Providing clear evidence of [graphic warning labels'] impact on smoking rates themselves or for the causal mechanism [by which they reduce smoking] would meet the Court's test."

He adds that the FDA must also take care to avoid images that could be interpreted as opinions instead of facts or which do not show a negative health consequence of smoking, such as an image previously adopted by the FDA, which depicted a man with a no-smoking sign on his shirt.


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Contact: Karen Mallet
km463@georgetown.edu
Georgetown University Medical Center
Source:Eurekalert

Page: 1 2

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