Court rules in favor of graphic labels on cigarette packages

By Dr. Ananya Mandal, MDMar 20 2012

An appeals court ruled on Monday that the government’s planned graphic warnings on cigarette packages was legal and didn’t violate the free speech rights of tobacco companies.

The case is one of two by tobacco companies against the federal rules that would make them slap large images on cigarette packs depicting the health ravages of smoking. In the other case, a federal judge in Washington has blocked the new requirement, arguing last month that it violated free speech. That decision is being appealed by the government. The decision is on whether cigarette makers will be required to place the large gory labels depicting corpses, diseased lungs, and rotted teeth on the front of every pack.

In this case, originally filed in Kentucky, a three-judge panel from the U.S. 6th Circuit Court of Appeals in Cincinnati ruled that the government has an interest in preventing consumers from being deceived by the marketing practices of tobacco companies and that the Family Smoking Prevention and Tobacco Control Act's requirements are aimed at that goal.

In the meantime, the federal Centers for Disease Control and Prevention announced last week that it was launching a $54 million media campaign to discourage kids from lighting up and encourage smokers to quit. A 2009 federal law gave the US Food and Drug Administration the authority to regulate tobacco. That opened the door for a host of initiatives, including updated cigarette warnings and a ban on companies using color in their advertising. The color ad ban was struck down by a federal Kentucky court, a ruling that the federal appeals court agreed with in Monday’s decision.

In its majority ruling, the appeals court found that the FDA’s requirements for large, graphic cigarette warning labels “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional.” The court found that the warnings “do not impose any restriction on Plaintiff’s dissemination of speech, nor do they touch on Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”

Judge Jane Branstetter Stranch cited past practices by tobacco companies to deceive consumers about the hazards of tobacco products and said the new requirements provide “truthful information” to consumers as they make decisions about using tobacco.

“It bears emphasizing that the risks here include the undisputed fact that plaintiffs' products literally kill users and, often, members of the families of users,” Stranch wrote. “Tobacco products will kill up to one-half of the people who use them as they are intended to be used.”

The court in addition upheld other provisions of the 2009 federal law, including one that prohibits tobacco companies from implying that a tobacco product is safer because it is regulated by the FDA. And it bans several forms of tobacco marketing aimed at children, including tobacco-branded merchandise such as caps and T-shirts and free samples of tobacco products.

“This ruling is a clear victory for public health,” the non-profit Campaign for Tobacco-Free Kids, which advocates for stronger restrictions to be placed on tobacco products, said in a statement. “It is disappointing, however, that today’s ruling strikes down two provisions of the law,” the group added, “one that bans the use of color and imagery in tobacco advertising in locations viewed by large numbers of youth and a second that prohibits free gifts with [the] purchase of tobacco products.”

Tobacco companies in 2009 sued in Bowling Green, Ky., challenging marketing restrictions that mandate tobacco companies reserve 50% of the front and back of cigarette packaging, 30% of the front and back of smokeless tobacco packaging and 20% of tobacco advertising for full-color graphic health warnings issued by the FDA. The appeals court decision upholds most of a ruling by U.S. District Judge Joseph H. McKinley in 2010, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product. The tobacco companies argued that the law infringed their free-speech rights. The government argued that the law was in the public interest.

Floyd Abrams, an attorney for Lorillard Tobacco Co., said the decision applies more broadly to whether the FDA has the right to impose certain marketing regulations on the tobacco industry but does not specifically address the content of those requirements. “Taken as a whole, I think the decision seems to reflect a reluctance to give sufficient weight to 1st Amendment concerns,” Abrams said.

Bryan Hatchell, a spokesman for R.J. Reynolds Tobacco Co., said the court concluded only that warnings could be required, but stopped there. “This court did not address the constitutionality of the nine graphic images the FDA seeks to impose,” Hatchell said.

Abrams said he believes that the issue will ultimately be heard by the U.S. Supreme Court.