[T]his Court concludes that the plaintiffs have demonstrated: (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent injunctive relief; (3) that neither the Government, nor the public, will suffer any comparable injury as a result of the relief sought; and (4) that the public's interest in the protection of its First Amendment rights against unconstitutionally compelled speech will be, in fact, furthered.

In July, the US Court of Appeals for the Sixth Circuit [official website] heard oral arguments [JURIST report] in the tobacco advertising case, Discount Tobacco City & Lottery v. USA [Justia backgrounder], on which the FDA has relied. The Sixth Circuit has not yet issued an opinion on the case. In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The bill gives the FDA authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses and tobacco grower cooperatives. Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels.