Graphic warnings on cigarettes to be argued in April

John O'Brien Mar. 27, 2012, 12:49pm


WASHINGTON (Legal Newsline) - Appeals in the tobacco industry's challenge of new graphic warning labels being imposed by the federal government are scheduled for next month.

On Monday, the U.S. Court of Appeals for the District of Columbia Circuit scheduled oral arguments for April 10 in the federal government's appeal of two lower court rulings in favor of R.J. Reynolds Tobacco and four other companies.

In a motion on March 9, the tobacco companies asked for an "expedited but orderly" briefing schedule. The court complied, and briefing will be completed by Friday.

Should the three-judge panel from the D.C. Circuit affirm the rulings of U.S. District Judge Richard Leon, it will be in conflict with a recent decision by the Sixth Circuit.

The appeals concern Leon's granting of a preliminary injunction against the warning labels, which include diseased lungs and a cadaver with chest staples, and summary judgment in favor of the tobacco companies.

"(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.

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 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.

Judge Eric Clay wrote the Sixth Circuit's opinion in the related case, which was decided last week.

"We return to where we began -- the lack of consumer awareness of tobacco's serious health risks resulting from the decades-long deception by tobacco companies," Judge Eric L. Clay wrote for the Sixth Circuit. "Ample evidence establishes that current warnings do not effectively inform consumers of the health risks of tobacco use and that consumers do not understand these risks.

"It is beyond cavil that adolescents are a target of the marketing expertise of tobacco companies, a targeting that exists precisely because of intertwined advantages -- or for the young, disadvantages -- the coupling of immaturity of risk perception with the evidence that the vast majority of regular smokers made the decision to begin smoking as an adolescent."

Clay continued, "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: Tobacco products kill up to one-half of the people who use them as they are intended to be used.

"Against this backdrop, the Act requires graphic and textual warnings that convey the factual health risks of smoking to provide consumers with truthful information as they make decisions about purchasing and using tobacco products."

The judges who will decide the D.C. case are Judith Ann Wilson Rogers, Janice Rogers Brown and senior status judge A. Raymond Randolph.

Rogers was appointed by President Bill Clinton in 1994, Brown by President George W. Bush in 2005 and Randolph by President George H.W. Bush in 1990.

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