WASHINGTON (Legal Newsline) - A federal appeals court has ruled cigarette companies do not have to display graphic images of diseased lungs and a cadaver with chest staples on their packaging.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Friday that the federal Food and Drug Administration's new rule requiring the warnings is unconstitutional. The decision is in conflict with the Sixth Circuit's ruling, setting up a likely appeal and judgment from the U.S. Supreme Court.

"This case raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest -- in this case, by making 'every single pack of cigarettes in the country mini billboard' for the government's anti-smoking message," Judge Janice Rogers Brown wrote.

The court's 2-1 decision affirmed an earlier ruling by Judge Richard Leon that granted a preliminary junction. Oral arguments were held in April.

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.

Among the groups supporting the warning labels in a brief 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.

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."

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.

"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 decided the D.C. case were Judith Ann Wilson 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. Rogers dissented.

"(T)he government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers. The tobacco companies' decades of deception regarding these risks, especially the risk of addiction, buttress this interest," Rogers wrote.

From Legal Newsline: Reach John O'Brien at jobrienwv@gmail.com.

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