Judge overrules proposed graphic cigarette labels

By Dr. Ananya Mandal, MDMar 1 2012

A Washington judge overruled the federal mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking. The judge said the requirements were a violation of free speech.

The Family Smoking Prevention and Tobacco Control Act passed in 2009 would have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children.” Also included would be alternating images of a corpse and smoke-infected lungs.

“Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech,” said federal Judge Richard Leon in his 19-page ruling.

Units of Lorillard Inc. (LO) and Reynolds American Inc. (RAI), along with Commonwealth Brands Inc. and Liggett Group LLC, sued the FDA in August, claiming the mandates for cigarette packages, cartons and advertising would violate the First Amendment. The companies said in court papers that it would cost them a combined total of about $20 million to meet the 2012 deadline. The legal question was whether the new labeling was purely factual and accurate in nature, or was designed to discourage use of the products.

“The graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks” said Judge Leon. “Rather they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”

The graphic images included a man smoking through a tracheotomy hole in his throat, smoke wafting from a child being kissed by her mother, a diseased mouth presumably from oral cancer linked to chewing tobacco and a woman weeping uncontrollably.

There was no immediate reaction to the ruling from the FDA, and the Justice Department, which defended the law in court, said it had no comment. Michelle Bolek, an FDA spokeswoman, said in an e-mail that the agency doesn’t comment on litigation as a matter of policy.

But the president of the American Cancer Society Cancer Action Network declared the ruling “bad for public health.” “Today's ruling ignores the overwhelming, decades-long need for strong cigarette warning labels and allows Big Tobacco to proceed 'business as usual,' continuing to promote its highly addictive and deadly products,” Christopher W. Hansen said in a statement from the Cancer Action Network.

Lorillard attorney Floyd Abrams applauded the legal opinion. “The government, as the court said, is free to speak for itself, but it may not, except in the rarest circumstance, require others to mouth its position,” said Abrams, a prominent First Amendment scholar and attorney.

Several other lawsuits over the labels are pending in federal court, part a two-decade federal and state effort to force tobacco companies to limit their advertising, and settle billions of dollars in state and private class-action claims over the health dangers of smoking. The case is R.J. Reynolds v. U.S. Food and Drug Administration.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, called Leon's ruling “wrong on the science and the law.” “(The warnings) unequivocally tell the truth about cigarette smoking -  that it is addictive, harms children, causes fatal lung disease, cancer, strokes and heart disease, and can kill you. What isn't factual or accurate about these warnings? Not even the tobacco industry disputes these facts,” Myers said in a statement.

Canada, the U.K. and Brazil are among countries that require graphic cigarette warnings. One in five Canadian smokers reported smoking less as a result of graphic labels in a 2004 study of more than 600 people. The government is also likely to appeal the new ruling.

The Centers for Disease Control and Prevention estimates some 45 million adults smoke cigarettes, which are the leading cause of preventable deaths in the United States.