Whether provocative and misleading government-mandated graphic warnings on cigarette packaging are 'purely factual and uncontroversial' under Zauderer and whether such massive warnings are 'unjustified or unduly burdensome'

QUESTIONS PRESENTED FDA promulgated a rule requiring massive, provocative, and misleading graphic warnings on the top 50% of the front and back of every cigarette package and the top 20% of every cigarette advertisement. The district court invalidated the rule on First Amendment grounds, as the D.C. Circuit had done with an earlier version of the rule requiring materially identical warnings. The Fifth Circuit reversed, however, based on its conclusion—which created a split with the D.C. and Ninth Circuits—that the warnings are “purely factual and uncontroversial” and thus entitled to review under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The Fifth Circuit further concluded that the warnings satisfy Zauwderer because they are neither “unjustified [nJor unduly burdensome”—again splitting with a number of its sister circuits, including Seventh and Ninth Circuit decisions holding that far smaller warnings were unduly burdensome. The questions presented are: 1. Whether provocative and _ misleading government-mandated graphic warnings on product packaging and advertising are “purely factual and uncontroversial” for purposes of applying Zauderer. 2. Whether massive and gratuitous warnings are “unjustified or unduly burdensome” for purposes of satisfying Zauderer.