Tobacco giants sue FDA over ‘shock tactic’ cigarette pack images

By Dr. Ananya Mandal, MDAug 18 2011

The FDA ruled that by Oct. 22, 2012, every pack of cigarettes sold in the United States will carry one of nine graphic, full color, graphic warnings reminding people of just how horrible smoking is for their health. The image might be a pair of healthy lungs next to a pair of blackened and diseased lungs or a man smoking out of a hole in his throat or a mouth with sores on the lips and teeth all yellowed and decayed.

However the tobacco companies have put their foot down and on Tuesday, five U.S. tobacco companies sued the federal government, saying the mandatory warnings would violate their free speech rights.

“Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products,” the companies wrote in the complaint. The complaint also includes this line, “This is precisely the type of compelled speech the 1st Amendment prohibits.”

For more than 45 years, the FDA has required cigarette companies to put general warning on all their products and advertisements. The complaint filed Tuesday notes that the plaintiffs never challenged that requirement legally. The new warnings will be printed on the entire top half of the cigarette packaging, on both the back and the front sides. They'll also include a phone number for a stop-smoking hot line.

The five companies involved in the suit are R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands Inc., Ligget Group LLC and Santa Fe Natural Tobacco Co. Inc. Perhaps it should be noted that Altria Group Inc., the parent company of the nation's largest cigarette maker, Philip Morris USA, is not part of the lawsuit.

In a statement, Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said, “Rather than inform and educate, the graphic warnings include nonfactual cartoon images and controversial photographs that have been technologically manipulated to maximize an emotional response from viewers, essentially turning our cigarette packs into mini-billboards for the government’s anti-smoking message.” He said people should be educated on the dangers of smoking, “but this regulation completely disregards core constitutional principles.”

The FDA isn't commenting on the litigation at the moment.

But in a news release from June 21, when the agency selected the nine images, Health and Human Services Secretary Kathleen Sebelius said, “These labels are frank, honest and powerful depictions of the health risks of smoking and they will help encourage smokers to quit.”

Research firm IBISWorld has estimated the new labels would cause a decline of less than 1 percent in overall U.S. tobacco sales in 2013. But some marketing experts say the images could have a much stronger impact on consumers than the current written warnings on cigarette packs.

Professor Deborah Mitchell of the Wisconsin School of Business said that the new labels represent the government's most drastic attempt to curb cigarette marketing, making the industry's lawsuit an almost inevitable business decision. “There is a massive amount of psychological evidence that people are more affected by pictures and visuals than words,” said Mitchell, who specializes in consumer psychology. “The question is: When the government leverages that information to have a negative impact on an entire category, is that fair?”

An FDA spokeswoman said in a statement that the agency “does not comment on proposed, pending or ongoing litigation.” Tobacco use is the leading cause of premature and preventable death in the United States, and it claims almost half a million lives each year, according to the FDA website.