Court: Tobacco health labels constitutional

Mon Mar 19, 2012 6:41pm EDT

Combination picture of new graphic cigarette packages, released by the U.S. Food and Drug Administration June 21, 2011, shows a varied collection of a man on a ventilator, diseased lungs and dead bodies were among the graphic images for revamped U.S. tobacco labels, unveiled by health officials who hope the warnings will help smokers quit. REUTERS/U.S. Food and Drug Administration/Handout

Combination picture of new graphic cigarette packages, released by the U.S. Food and Drug Administration June 21, 2011, shows a varied collection of a man on a ventilator, diseased lungs and dead bodies were among the graphic images for revamped U.S. tobacco labels, unveiled by health officials who hope the warnings will help smokers quit.

Credit: Reuters/U.S. Food and Drug Administration/Handout

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(Reuters) - A U.S. law requiring large graphic health warnings on cigarette packaging and advertising does not violate the free speech rights of tobacco companies, a federal appeals court ruled on Monday.

Cigarette makers had sued to stop the U.S. Food and Drug Administration's new labeling and advertising requirements on grounds the rules violated their First Amendment right to communicate with adult tobacco consumers.

But the Cincinnati-based U.S. Court of Appeals for the 6th Circuit upheld the bulk of the FDA's new regulatory framework, including the requirement that tobacco companies include large warning images on cigarette packs.

The decision comes on the heels of a Washington, D.C., judge's ruling in a different, but related, case that rejected the FDA requirements and seems to set up a clash over the constitutionality of the FDA rules.

Floyd Abrams, a lawyer for Lorillard, noted the difference in tone in the two rulings and said the 6th Circuit case, the Washington case, or both, would likely end up in the U.S. Supreme Court.

The difference in the two cases is that the FDA had not introduced the specific images when the companies filed the 6th Circuit suit. While the Washington suit focused on the images, the appeals court addressed the larger issue of the FDA's regulatory power.

"There can be no doubt that the government has a significant interest in preventing juvenile smoking and in warning the general public about the harms associated with the use of tobacco products," Judge Eric Clay wrote for the three-judge 6th Circuit panel.

Congress passed the law in 2009 and ordered the FDA to adopt specific warning-label regulations. The labels must be in color, must cover the top 50 percent of a cigarette pack's front and back panels, and must cover the top 20 percent of print advertisements.

After tobacco companies, including R.J. Reynolds Tobacco Co and Lorillard Inc's Lorillard Tobacco Co, sued to block the law, the FDA unveiled nine images to go on cigarette packs, including graphic pictures of dead bodies, diseased lungs and rotting teeth. The companies accused the government of forcing them to disseminate an anti-smoking message in order to stigmatize and embarrass already-informed consumers.

The appeals court panel's two-judge majority disagreed with the companies on the label requirement, finding that the fact that the specific images might trigger disgust does not make the requirement unconstitutional. The majority did note that it was only addressing the constitutionality of the statute on its face, and not the specific images that the FDA introduced after the suit was filed.


Judge Clay, who wrote the main opinion upholding most of the FDA regulations, dissented, however, on the graphic label ruling. He called the rule "simply unprecedented." While the government can require a product manufacturer to provide truthful information, "it is less clearly permissible for the government to simply frighten consumers or to otherwise attempt to flagrantly manipulate the emotions of consumers as it seeks to do here," Clay wrote.

On February 29, D.C. district judge Richard Leon ruled that the FDA's images violated the tobacco companies' free-speech rights. He found that the warning labels were too big and that the government has numerous other tools at its disposal to deter smoking, such as raising cigarette taxes or including simple factual information on the labels rather than gruesome images.

The Obama administration appealed that ruling to the U.S. Court of Appeals for the District of Columbia Circuit on March 5.

Lorillard lawyer Abrams says Monday's appeals court decision does not necessarily conflict with the Leon's decision.

"The court made clear it was focusing on the statute as written, as opposed to the implementation of it," Abrams said.

The Department of Justice did not immediately provide comment.

The 6th Circuit also upheld other FDA regulations, including restrictions on the marketing of "light" cigarettes, on the distribution of free tobacco samples, and event sponsorship. The court struck down a rule barring the use of color and graphics in tobacco advertising.

"We are pleased the 6th Circuit Court of Appeal upheld the continued use of colors and imagery in our advertisements," said R.J. Reynolds spokesman Bryan Hatchell.

(Reporting By Terry Baynes in New York; Editing by John Wallace and Tim Dobbyn)

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Comments (17)
alaskan1st wrote:
It’s hard to figure how the tobacco industry has gotten away with selling poison to the public. They advertise to kids, add about a hundred addictive chemicals to their product, and sell a known carcinogen. It’s only right they should show what happens when you smoke the stuff. How could any stockholder in the tobacco companies not feel sorry for what they promote. But I’m sure most stockholders in general don’t have any idea what their money is doing. If they did then things might change……..oh wait, I forgot profits trump human lives.

Mar 19, 2012 3:53pm EDT  --  Report as abuse
Pguy wrote:
If “we the people” want to get red of tobacco, then cut out government subsidies to tobacco farmers, make it illegal to raise, harvest, cure, package the product into cigarettes, cigars or to package as pipe tobacco, make it illegal to wholesale, or retail tobacco products, and make any of the above actions punishable by death, with no right of appeal and a trial to be conducted within 7 days of the arrest and punishment within one hour of conviction. Quit screwing around with it.

Mar 19, 2012 4:42pm EDT  --  Report as abuse
alaskan1st wrote:
Citizens United v We the People decision made it so we are no longer the constituency. The corporate world now rules America. Good luck on hurting ANY industry.

Mar 19, 2012 5:28pm EDT  --  Report as abuse
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