Appeals court won't reconsider graphic tobacco warning labels

This combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers would have had to use by the fall of 2012. Federal judges have ruled the labels violate First Amendment free speech protections. / AP Photo/U.S. Food and Drug Administration, File

RICHMOND, Va. An appeals court on Wednesday denied the federal government's request to reconsider a decision blocking a requirement that tobacco companies put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.

In its filings, the U.S. Court of Appeals in Washington, D.C., did not provide any reason denying the request for the full court or a panel to rehear the case.

In August, a three-judge panel affirmed a lower court ruling blocking the Food and Drug Administration mandate, saying it ran afoul of the First Amendment's free speech protections.

A Justice Department spokesman declined to comment. The government has 90 days to appeal the decision to the U.S. Supreme Court.

• U.S. appeals court strikes down FDA tobacco warning label requirement
• Judge orders tobacco companies to say they lied
• Court: NY can't scare smokers with gross images

Some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to show the dangers of smoking and encouraging smokers to quit lighting up. They argued that the proposed warnings went beyond factual information into anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual.

The nine graphic warnings proposed by the FDA include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother's kiss. These are accompanied by language that says smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline, 1-800-QUIT-NOW.

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers - one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

The appeals court panel in August wrote that the case raises the question of whether the government can force the manufacturer of a product to go beyond making purely factual and accurate disclosures and undermine its own economic interest - in this case, by making "`every single pack of cigarettes in the country (a) mini billboard' for the government's anti-smoking message." It wrote that the FDA "has not provided a shred of evidence" showing that the warnings will "directly advance" its interest in reducing the number of Americans who smoke.

But the government argued in its appeal for rehearing that the text of the new warnings are "indisputably accurate" and the format, including the use of graphics, is tailored to the demand of a "market in which the vast majority of users become addicted to a lethal product before age 18." It also argued that the First Amendment does not require the government to show how one part of a multi-faceted anti-smoking public health campaign directly reduces smoking rates.

55 Photos

55 gruesome tobacco warning labels

27 Photos

27 cigarette warning labels nixed by the FDA

Warning labels first appeared on U.S. cigarette packs in 1965, and current warning labels that feature a small box with text were put on cigarette packs in the mid-1980s. Changes to more graphic warning labels that feature color images of the negative effects of tobacco use were mandated in a law passed in 2009 that, for the first time, gave the federal government authority to regulate tobacco.

The share of Americans who smoke has fallen dramatically since 1970, from nearly 40 percent to about 19 percent. But the rate has stalled since about 2004, with about 45 million adults in the U.S. smoking cigarettes. It's unclear why it hasn't budged, but some market watchers have cited tobacco company discount coupons on cigarettes and lack of funding for programs to discourage smoking or to help smokers quit.

In recent years, more than 40 countries or jurisdictions have introduced labels similar to those created by the FDA. The World Health Organization said in a survey done in countries with graphic labels that a majority of smokers noticed the warnings and more than 25 percent said the warnings led them to consider quitting.

Joining North Carolina-based R.J. Reynolds, owned by Reynolds American Inc., and Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.

Richmond, Va.-based Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes the top-selling Marlboro brand, is not a part of the lawsuit.

The case is separate from a lawsuit by several of the same tobacco companies over the 2009 Family Smoking Prevention and Tobacco Control Act, which cleared the way for the more graphic warning labels and other marketing restrictions. The law also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.

In March, a federal appeals court in Cincinnati ruled that the law was constitutional. The companies in October petitioned the U.S. Supreme Court to review that case.

[nohater]

and then there is george burns who lived to be a 100 y/o. reportedly smoked 15-25 cigars a day but did not die of lung, throat, mouth cancer. died of old age in his sleep. wonder how many smokers don't get any cancer or don't die as a result of smoking?

[MrLiterally]

Tobacco is nasty stuff. I am for the labels.

[Kovacsmaster]

I have a better idea, simply ban tobacco products and throw in jail those that produce it, fine heavily those that use it. Problem solved...

[SUZAMBA]

If they want to smoke, they will, and if they want to drink, or drink & drive, they will. Same with overeating and other habit comes along. The pictures won't matter.

[thetruthwillout]

We're haggling over legalizing marijuana, yet the government refuses to allow honesty about the death and devastation caused by cigarettes. Graphic photos impede business, and we must keep the cigarette companies in business. But we'll fill our jails with non-violent pot smokers. What a bunch of hypocrites our government is full of!

[clydealan2]

Cigarettes stand alone as the only product that cause sickness and death when used as directed. A comparison to cars or overeating is just stupid. Canada is one more place that has proven those repulsive pictures do indeed work. In American however there are times when profit trumps. This ruling is one of those times.

[davidd5063]

Oh for goodness sake. Cars kill people, wars poison soilders, where are the graphic warnings for corn sugar, gluten, and whatever McDonalds is calling "beef"? Look, the tobacco cos lied, no more than the oil cos continue to lie about global warming, but they did lie. Now, we have a situation where "non-smokers" have gone SO SELF-RIGHTEOUS as to be PUNISHING those who choose to smoke - say rather than drink ALCHOHOL! Just another example of the MAJORITY looking for ANY EXCUSE to tax a minority without representation.

[Scimajor]

It doesn't matter. People who smoke will smoke and poison themselves, their children and everyone around them regardless of what picture is or isn't on the package.

Why not get the political courage to simply make it a criminal offense for people/companies to poison themselves, their children and everyone around them? Oh, hold on, it's already illegal to poison people! So WHY ISN'T it enforced?