Judge: FDA's new cigarette warnings violate First Amendment

John O'Brien Feb. 29, 2012, 2:00pm


WASHINGTON (Legal Newsline) - Graphic warning labels imposed by the federal government on tobacco products violate the First Amendment, a federal court in Washington, D.C., has ruled.

U.S. District Judge Richard Leon on Wednesday ruled in favor of five tobacco manufacturers that challenged the labels, which displayed graphic imagines like diseased lungs and a cadaver bearing chest staples on an autopsy table. The companies argued the images were an unconstitutional means of forcing them to distribute the government's anti-smoking message.

A preliminary injunction against the labels had been granted by Leon. Wednesday, he granted the companies' motion for summary judgment.

"(A)lthough the government contends that it has a compelling interest -- 'conveying to consumers generally and adolescents in particular, the devastating consequences of smoking and nicotine addiction,' -- its 'stated purpose does not seem to comport with the thrust of its arguments, or with the evidence it offers to support the rule,'" Leon wrote.

"To the contrary, it is clear that the government's actual purpose is not to inform or educate, but rather to advocate a change in behavior -- specifically to encourage smoking cessation and to discourage potential new smokers from starting."

The Family Smoking Prevention and Tobacco Control Act of 2009 gave the federal Food and Drug Administration the authority to regulate the manufacture and sale of tobacco products. After new warning statements were implemented, the FDA proposed nine graphic images.

In addition to the two previously mentioned, images that were included were:

-A man exhaling cigarette smoke through a tracheotomy hole in his throat;

-Cigarette smoke enveloping an infant being kissed by its mother;

-A mouth filled with cancerous lesions;

-A man breathing into an oxygen mask;

-A crying woman; and

-A man wearing a T-shirt with a "no smoking" symbol and the words "I QUIT."

The images were supposed to take up 50 percent of the front and back portions of cigarette packaging. They also needed to be held to a higher First Amendment standard, Leon wrote.

"(T)he graphic images here 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," Leon wrote.

Leon also wrote that the images were misleading.

"(T)he graphic images are neither factual nor accurate," Leon wrote. "For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the government provides no support to show that autopsies are a common consequence of smoking.

"Indeed, it makes no attempt to do so. Instead, it contends that the image symbolizes that 'smoking kills 443,000 Americans each year.' The image, however, does not provide that factual information."

Among the groups supporting the warning labels were 22 state attorneys general who joined in a brief that claimed Leon had failed to recognize the public health threat posed by smoking when he granted the preliminary injunction.

"The appropriateness of a product warning depends upon the dangers posed by the product, the likelihood that its users will suffer harm, the likelihood that the warning will be noticed, and the capacity of those dependent on the warning to understand its import and act in response to it," the brief says.

"The urgency of a warning for a product that could cause the death of children may differ markedly from that of a warning for a product that could cause an upset stomach."

The states that joined the brief are Alaska, Arizona, Arkansas, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, Montana, New Hampshire, New Mexico, Ohio, Rhode Island, South Dakota, Utah, Vermont, Washington and West Virginia.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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