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FDA Tobacco Warnings Headed to US Supreme Court?

By Andrew Lu on August 29, 2012 6:54 AM

The seemingly never-ending litigation regarding the graphic cigarette warning labels appears headed to the Supreme Court of the United States.

This week, the U.S. Court of Appeals in Washington ruled for the tobacco industry and found that the Food and Drug Administration (FDA) could not force cigarette manufacturers to post the graphic images.

The FDA had proposed images that covered the entire top half of cigarette packaging that showed images like a baby enveloped by smoke and people who have died from lung cancer, reports The Associated Press.

While this may seem like a relief to general counsels at these large cigarette companies, in house counsels may want to wait to celebrate their court victory as the issue seems likely headed to go up for review by the highest court.

The problem with the most recent victory in the Washington D.C. appellate court is that it conflicts with an earlier decision this year by another federal court of appeals in Cincinnati. In that decision, the federal appeals court ruled for the FDA and found that the agency could require the graphic images, reports the AP.

Typically, in high-profile litigation like the graphic cigarette warnings cases, the Supreme Court will step in when two appellate courts give contrary opinions. Otherwise, businesses and their general counsels will be acting with a great deal of uncertainty.

For general counsel involved in any controversial decision, the lawyers may be in the unenviable position of recommending action when faced with competing court decisions such as in the case of the cigarette warning litigation. But making these difficult decisions is mainly why general counsels get paid the big bucks.

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