#1] . In June 2011, defendant United States Food an d Drug Administration ( F DA ) published a Final Rule requiring (among other things ) the display

o f

nine new textual warnings - along with certai n g raphic ima ges such as diseased lu ngs and a cadaver bearing chest staples o n an aut opsy table - on t he to p 50%

o f

the front and back panels

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every cigarette package manufactured and distributed

in

the United States on or after September

22,2012.

ee

FDA, Required Warnings for Cigarette Packages and Advertisements, 76 Fed. Reg. 36,628 (June 22, 2011) ( the Rule );

see also

PIs.' Mot. for Preliminary Injunction ( Mot. for PI ), Aug. 19, 2011, at

1-3

[Dkt. # 11] . Alle ging that the Rule violates th e First Amendme nt and the Administrative Procedure Act ( AP A ), 5 U.S.C.

§§

553(b)(3), 705, 706(2)(A),

see

CompI. -r -r

5-6, plaintiffs now seek a preliminary injunction against the FDA, the Secretary

o f

the U.S. Department

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Health and Human Services ( the Secretary ), and the Commissioner

o f

the

FDA

( the Commissioner and together, defendant s or the Government ), to enjoin enforcement

o f

the Rule until fifteen months

after

resolution

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plaintiffs ' claims on th e merits.

2

Mot. for PI at

1

5-6 . As such, plaintiffs raise for the first time in our Circuit the question

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whether the

FDA s

new and mandatory graphic images, when combined with certain The FDA conveniently refer s to these graph ic images as graphic warnings. While cha racterizing the mandatory textua l statements as warning s seems t o b e a fair and accurate descripti on, characterizing these graphic images as warnings strikes me as inaccurate and unf air. At first blus h, they appear to be more about shocking and repelling than warning. Accordi ngly, I will refer to them simply as graphi c images, and set this self-se rving war ning label aside for closer analysis on anothe r day. Plaintif fs filed a Motion for Summa ry Judg ment [Dkt. # 1

0]

on the same day they filed their Motion for Prelimi nary Injunct ion [Dkt. # 11 ]. The Motion for Summar y Judgment, however, is not before the Court today.

2