Cigarette warning labels a danger to all industries, groups say

John O'Brien Apr. 9, 2012, 4:00pm


WASHINGTON (Legal Newsline) - Advertising groups say allowing the government's imposition of graphic warning labels on cigarette packaging would be a dangerous precedent that would affect all industries.

The Association of National Advertisers and the American Advertising Federation filed an amicus brief in support of the tobacco industry's fight against the labels, which have been declared unconstitutional by a Washington, D.C., federal judge. The brief was filed Wednesday with the U.S. Court of Appeals for the District of Columbia Circuit.

Oral arguments begin Tuesday in the fight over a preliminary injunction against the warning labels. Among the images the government hopes to require are a pair of diseased lungs and a cadaver with chest staples.

"(T)he required graphic warnings do not just fail to survive First Amendment scrutiny - attempting to control public discourse for fear people might otherwise make bad choices is not even a legitimate purpose," the brief says.

"The government has numerous non-regulatory means at its disposal to persuade the public to change its ways, and the Supreme Court has held that the state may not regulate private speech 'in order to tilt public debate in a preferred direction.'"

The ANA has a membership of 400 companies with 9,000 brands that spend more than $250 billion annually in advertising and marketing communications in the United States. The AAF is a trade association that represents 50,000 professionals in the advertising industry.

In their opinion, allowing the labels on cigarette packaging would increase the chance their members could be subjected to similar actions.

"If the government can deputize tobacco companies through their product packaging and advertisements to deliver its message, there is no reason it could not do so elsewhere," the brief says. "Both history and 'the logical extension of the government's effort here show it will not hesitate to do so."

U.S. District Judge Richard Leon ruled the federal government was violating tobacco companies' First Amendment rights by forcing them to brand their products with the government's anti-smoking message.

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.

"(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."

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.

The Sixth Circuit ruled for the government in a related case.

"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."

The advertising groups disagree, arguing the government's purpose for implementing the rule is illegitimate.

"The FDA's claim that existing health warnings have grown 'stale' or that people pay insufficient attention to the textual statements does not legitimize the government's purpose," their brief says.

"Its measure of success boils down to the notion that people would be better off if they could be persuaded to follow the government's health recommendations. Perhaps so.

"Such a purpose may call for a public education campaign or government-sponsored public service announcements, but it cannot justify broad restrictions on commercial speech or conscripting private speakers to deliver the government's message."

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