The Georgia Association of Convenience Stores is teaming up with cigarette giant Philip Morris in a legal fight against the U.S. Food and Drug Administration and its rule requiring graphic warnings on cigarette packaging and advertising.
Enforcement of the 2020 rule, which has yet to go into effect, would cost Georgia retailers and unfairly force them to “speak against their own products via provocative images that may mislead consumers,” according to a lawsuit filed in the Southern District of Georgia.
It says the rule will render convenience stores “unwelcoming, especially to children.”
The Dec. 13 complaint was brought by the association, Philip Morris and two Georgia companies that own convenience stores and distribute products including cigarettes. They sued the FDA and its commissioner, as well as the U.S. Department of Health and Human Services and its secretary.
“This is a clear case of administrative rulemaking gone awry,” the group said in the suit. “Cigarette packaging and advertisements have long featured text-only Surgeon General’s warnings about the health consequences of smoking, but FDA’s rule would represent a sea change that would revolutionize cigarette packaging and advertisements.”
Credit: Supplied
Credit: Supplied
The lawsuit follows a failed attempt by other cigarette manufacturers and retailers to scuttle the rule through a Texas federal court. In that case, a Texas judge blocked the rule’s enforcement based on claims that it violated the manufacturers and retailers’ free speech rights. A federal appellate court then reversed, holding that the FDA’s warnings about cigarettes “are both factual and uncontroversial, despite the emotional impact the graphics may have.”
In August, the cigarette manufacturers and retailers behind the Texas case asked the U.S. Supreme Court to weigh in. Their petition for review was denied on Nov. 25.
In September, the FDA announced it intends to enforce the rule starting Dec. 12, 2025. Asked about the Georgia lawsuit, the FDA’s media team said the agency “generally does not comment on possible, pending or ongoing litigation.”
The new rule requires cigarette manufacturers to display one of 11 warnings across 50% of every cigarette package and 20% of every advertisement. It also requires convenience stores to display the warnings on in-store advertisements for cigarette products.
Distributors of cigarette products must also include the warnings in their distribution and advertising of such products to retailers.
In creating the rule, the FDA arbitrarily focused on certain smoking-related risks over others without explanation, the cigarette makers and sellers allege. They also claim the FDA “ignored countless red flags in its own studies suggesting that its warnings did not in fact improve consumer understanding and may actually backfire.”
The agency “repeatedly ignored study feedback that the graphic warnings were confusing, unclear, did not teach new information, or were not believable,” the lawsuit says.
Philip Morris and the Georgia plaintiffs also allege the FDA shielded its shoddy decision-making from public scrutiny by refusing to disclose related studies and data. They also challenge the rule’s limitations on free speech.
“Today’s graphic cigarette warnings could be tomorrow’s graphic junk food or climate change warnings,” the retailers say in the suit.
Compliance with the rule will cost Philip Morris millions of dollars, the company claims. On its website, the cigarette company says it “agrees with the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious diseases in smokers.”
“We support a single, consistent public health message on the role of cigarette smoking in the development of disease in smokers, and on smoking and addiction,” the company said.
Georgia retailers and distributors will also incur costs in making sure they don’t sell or distribute cigarette products without the warnings once the rule is enforced, according to the complaint.
The lawsuit seeks to scrap the rule or delay its enforcement. The plaintiffs said they could be made to comply with the rule before their counterparts in the Texas case, which is still being litigated in relation to claims under the federal Administrative Procedure Act.
Lawyers for Philip Morris and the Georgia plaintiffs did not immediately respond to questions. A representative of the Georgia Association of Convenience Stores did not immediately respond to an inquiry about the rule and its potential impact.
The Georgia companies involved in the lawsuit are Dhaliwal & Associates Inc., which owns and operates three convenience stores in South Georgia, and Stewart Candy Co., which does business as Stewart Distribution and supplies about 1,200 convenience stores in Georgia, Florida, Alabama and South Carolina.
