Federal judge blocks graphic cigarette ads
WASHINGTON, DC - On February 29, a federal judge dealt the final death blow to proposed cigarette pack labeling that would graphically display the health impact of smoking. Last June, the Food and Drug Administration (FDA) issued a mandate that required all cigarette packs to display one of nine graphic anti-tobacco images.
The proposed labels include staged photos of a corpse and of a man breathing smoke out of a tracheotomy hole in his neck. Health and Human Services Secretary Kathleen Sebelius called the graphic ads frank and honest warnings about the dangers of smoking. On August 16, tobacco companies, led by R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., filed a lawsuit in federal court.
The lawsuit stated, “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 noted that the warnings no longer simply convey facts to allow people to make a decision on whether to smoke. Instead, they force their companies to put government anti-smoking advocacy more prominently on their packs than their own brands. The FDA refused to comment, noting that it is agency policy to not discuss pending litigation. However, when she announced the new labels last June, Health and Human Services Secretary Kathleen Sebelius called them frank and honest warnings about the dangers of smoking.
On November 7, 2011, Judge Richard J. Leon of United States District Court in Washington blocked the FDA requirement that tobacco companies place large graphic warning labels on cigarette packages by September 2012. In a preliminary injunction, Judge Leon ruled that tobacco companies were likely to win a free speech challenge against the labels; he added that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government’s “obvious anti-smoking agenda!” The ruling marked a setback for Congressional and FDA efforts to force the inclusion of the warnings on cigarette packages. The FDA claims that they are the most significant change to health warnings in 25 years.
In his 19-page February 29, 2012 opinion, Judge Leon wrote that the government may compel companies to issue warnings that convey facts to consumers; however, the new requirements went too far because they were “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.” He added, “Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.”
Floyd Abrams, a First Amendment lawyer who represents Lorillard, noted that the ruling “makes clear that the government cannot compel speech except in very rare circumstances and certainly cannot do so in ones in which it is telling the seller of a lawful product to urge them not to buy it.”
The appearance of health warnings on cigarette packs and advertisements began in 1966 prompted a nationwide reduction in smoking rates for the subsequent decades. Currently, one in five American teens and adults still smoke. Annually, hundreds of thousands of Americans die each year as a result of tobacco smoke. The Justice Department, which appealed the temporary restraining order, is also expected to appeal Judge Leon’s latest ruling.