Feds face uphill battle for graphic cigarette warning labels

(CBS/AP) The federal government fought against cigarette makers to convince a skeptical judge that tobacco companies should be required to put large graphic photos on cigarette packs to show that the habit kills smokers and their babies.

PICTURES - 27 cigarette warning labels nixed by the FDAPICTURES - 9 cigarette warning labels

Cigarette makers told U.S. District Judge Richard Leon at a hearing that they can't be forced to spread the government's anti-smoking advocacy with "massive, shocking, gruesome warnings" on products they legally sell. But attorneys for the Obama administration say the photos of dead and diseased smokers it wants on all cigarette packs are "factually uncontroverted."

Leon has already ruled that the cigarette makers are likely to succeed in their lawsuit to stop the requirement, which was supposed to go into effect next year. Leon blocked the rule from taking effect until after the lawsuit is resolved.

Leon found in his earlier ruling that the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about the health risks of smoking and into advocacy - a critical distinction in a case over free speech.

PICTURES - 55 gruesome tobacco warning labels

The FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. According to Leon, the size of these labels suggests they are unconstitutional.

What did the judge have to say after the hour-long hearing Wednesday? "It sounds like they are headed to a place where you have to watch a 10-minute video before you can even buy a pack of cigarettes. He said "there's just nothing - nothing - on the record" to indicate lawmakers consider the First Amendment implications of compelling commercial speech.

The Obama administration has appealed Leon's preliminary injunction stopping the rule from taking effect. The U.S. Court of Appeals for the District of Columbia is scheduled to hear the case April 10.

Attorney Mark Stern, representing the government, told Leon they don't expect he'll change his mind after siding so strongly with the tobacco companies in his initial ruling. But he said the government disagrees and argued the images factually show what can happen to smokers. "This will kill you," Stern said. "This will kill your baby."

Congress instructed the FDA to require the labels by a wide bipartisan majority, following the lead of the Canadian regulations that require similarly graphic images on cigarette packs.