Congress further directed the FDA to “issue regulations that require color graphics depicting the negative health consequences of smoking to accompany the label statements specified in subsection (a)(1).” These text-and-graphic pairings must appear on the top 50 percent of the front and rear panels of cigarette packages and at least 20 percent of cigarette advertisements. The warning statements must also comply with detailed placement, rotation, and formatting requirements. Despite the TCA’s intricate specifications, it grants the FDA modest authority to adjust the warnings in two limited ways….<\/p>\n

[A later FDA Rule] discarded all but two of Congress’s nine statutory warnings and substituted statements of the FDA’s own drafting. As a result, the Rule requires cigarette manufacturers and retailers to display a rotating total of eleven warning statements\u2014rather than the nine enumerated in \u00a7 1333(a)(1)\u2014each paired with a graphic image depicting a smoking-related health harm … [:]<\/p>\n

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… As always, we begin with the statutory text\u2014”the alpha and the omega of the interpretive process.” The operative provision here, \u00a7 1333(a)(1), makes it unlawful to sell or distribute cigarettes whose package “fails to bear, in accordance with the requirements of this section, one of the following labels.<\/em>” It then immediately prescribes the labels to use. Rarely is statutory text this crisp. The command requires a package to bear “one of the following labels,” and then lists nine of them\u2014yet the FDA would read nine as eleven. Nine is not a placeholder for eleven….<\/p>\n

Consider a familiar analogy: If a restaurant menu says a customer may choose “one of the following sides” followed by a list of nine choices, no ordinary diner reads that as license to order an unlisted tenth. Trendy eateries may keep a secret menu; the United States Code does not. Congress supplied a list of nine labels and required sellers and manufacturers to use one of them on rotation. But the Rule departs from that command. It instead requires packages and advertisements to rotate among eleven warnings\u2014two more than Congress listed. A package bearing one of the extra labels is thus not bearing “one of the following labels” Congress enumerated. That straightforward reading suffices here….<\/p>\n

Congress sometimes speaks in gauzy generalities. But Congress steered clear of any concerns attendant to doing so in the TCA. And when Congress opts for precision, agencies must respect that choice, not revise it. Precision in legislation leaves no room for improvisation in execution….<\/p>\n<\/blockquote>\n

Amelia DeGory, Christian George Vergonis, and Ryan Jeffrey Watson (Jones Day) represent plaintiffs.<\/p>\n