U.S. appeals court mulls graphic tobacco warning labels

Two of nine new graphic warning labels proposed by the U.S. Food and Drug Administration.

/ AP Photo/U.S. Food and Drug Administration, File

(AP) A federal appeals court Tuesday weighed the constitutionality of requiring large graphic photos on cigarette packs to show that smoking can disfigure and even kill people, with two of the three judges questioning how far the government could go.

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Some of the nation's largest tobacco companies, including R.J. Reynolds, sued to block the mandate. They argued that the government's proposed warnings go beyond factual information into anti-smoking advocacy. The Obama administration responded that the photos of dead and diseased smokers are factual.

In February, U.S. District Judge Richard Leon ruled that the requirement ran afoul of the First Amendment's free speech protections and blocked the requirement. The government appealed.

The nine graphic warnings proposed by the Food and Drug Administration 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. Some other images 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.

At Tuesday's hearing, Judge A. Raymond Randolph, an appointee of Republican President George H.W. Bush, asked if the government could go so far as to require cars to carry a warning that "speed kills," with a graphic illustration. Justice Department attorney Mark B. Stern replied that he didn't think there would be any problem with that.

Another Republican appointee, Judge Janice Rogers Brown, asked if the government could mandate a cigarette warning that said, "Stop! If you buy this product, you are a moron," or "Smokers are idiots."

"No, I don't think saying smokers are idiots is accurate," Stern replied. He said such a warning would be "problematic."

Brown also questioned if the government was on a path to put warnings on other legal products.

"Where does this stop?" asked Brown, who like District Judge Leon was appointed by Republican George W. Bush.

Lawyers for the tobacco companies made a similar argument in their brief. They superimposed the FDA tobacco image of a cadaver onto a McDonald's bag with the warning that fatty foods may cause heart disease, and the FDA's image of a premature baby in an incubator on a bottle of alcohol with a warning that drinking during pregnancy can cause birth defects. They also showed a Hershey's chocolate bar with half the wrapper covered by a picture of a mouth of rotting teeth and a warning that candy causes tooth decay.

Stern said those comparisons trivialized an important issue. "Addiction really means addiction," he said, and it was not like eating candy.

The third judge on the panel, Judith W. Rogers, an appointee of Democrat Bill Clinton, didn't ask any questions of the Obama administration, but she grilled Noel J. Francisco, a lawyer for tobacco companies. Rogers asked Francisco if he was challenging the accuracy of the FDA's text warnings, such as smoking causing cancer and heart disease. The lawyer said he was not, but that the government was going beyond mere facts by including a phone number to quit.

"The government is trying to send a powerful message: Quit smoking now," he said. When the message tells people to live a certain way, it crosses the line from facts to advocacy, he argued.

But Randolph said he had a hard time finding that line, adding that the judges were in "new territory."

In his ruling, Leon wrote that the graphic images "were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."

"While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear," Leon wrote.

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.

Last month, a federal appeals court in Cincinnati ruled that the law was constitutional.

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.

27 Photos

27 cigarette warning labels nixed by the FDA

[marine1957]

Let the warnings, however graphic, continue. THE TRUTH SHALL SET YOU FREE...

[NinthSt78]

The teacher was right-- they will catch more flies with honey than they will with vinegar.

[magnumdr]

The question is, is this fair play? There are many things we do that can damage a person and their bodies in similar ways. Why only pick the tobacco users and companies to target like this. This is pure discrimination and harassment of tobacco users and the companies that make the products. According to our Constitution the taxes on all tobacco products are unfair also. It states, "all taxes shall be fair and equal for all", this includes the people who choose to use the legal products that are sold to the public. When is all of this unfair treatment going to stop so smokers can also live here free to choose without all of the harassment, discrimination, and unfair taxes we pay?.

[MagnaCartaUK]

We've had these warnings on cigarette packs in Britain for a while. I have to say that whilst I don't smoke, those I know that do find them insulting. The general consensus among them is that we already know of the dangers, but why not highlight the telephone helplines and practical programmes offered free by the N.H.S. here instead?Graphic images may make people more resentful, even threatened, rather than concerned for their health - and that seems a wasted opportunity. If nicotene's 3 times more addictive than heroin, then bludgeoning people with horrific imagery alone isn't likely to work - supplying people with information and the benefits of practical health programmes will. Show them this graphic detail when involved in a programme, where it may be considered information, rather than a State sponsored threat albeit with a 'natural' origin.

[MagnaCartaUK]

Just as an afterthought, it might also be of benefit to those contemplating giving up smoking to know of the 'particularly difficult points' when the cravings are worst. For example, 10 minutes after having a cigarette an increasing number of neuro-transmitters, (I think that's what they're called), crave nicotene. Another barrier is 36 hours. Then 3-4 days. The greatest barrier I've noticed down the years, told to me from people trying to kick the habit, is the '3 week obstacle'. This is the time, it seems, when the majority experience the greatest challenge. That said, many overcame it either through sheer will power or with the aid of nicotene patches, etc. Either way, these 'barriers' need to be publicised to a far greater degree - as people deserve the best information, support and encouragement that's possible in their battle to give up the weed. One chap I know gave up at the end of November last year, and admitted that after smoking 15 a day for 26 years it was a struggle at first, but also said 'I can realy appreciate the taste of my food after all these years'. It's never to late to give up, no matter how long, or how heavy a smoker - and some of the health benefits are IMMEDIATE. Best wishes if thinking of giving up - stress that dictates you smoke can be handled far better in many other ways too - given a chance that is.