U.S. appeals court strikes down FDA tobacco warning label requirement

One of nine graphic warning labels the Food and Drug Administration had wanted tobacco companies to place on cigarette packs starting September, 2012.

/ FDA

(CBS/AP) Tobacco companies won't have to put nine new graphic warning labels from the Food and Drug Administration on cigarette packs this year after all, an appeals court ruled Friday.

The U.S. Court of Appeals in Washington announced it upheld a decision barring the federal government from requiring tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.

Pictures: 27 cigarette warning labels nixed by the FDA
Pictures: Cigarette warning labels
Pictures: Australia's graphic tobacco warning labels

In a 2-1 decision, the U.S. Court of Appeals in Washington affirmed a lower court ruling that the requirement ran afoul of the First Amendment's free speech protections. The appeals court tossed out the requirement and told the FDA to go back to the drawing board.

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. The labels were mandated to appear on cigarette packs beginning in September, 2012.

In the majority opinion, the appeals court wrote that the 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 (a) mini billboard' for the government's anti-smoking message."

The court also 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.

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.

"It's a significant vindication of First Amendment principles," said Floyd Abrams, an attorney representing Lorillard Tobacco. "There's never been any doubt that the government could require warnings on products that can have dangerous results. And what the court is saying is that there are real limits on the ability of the government to require the manufacturer of a lawful product to denounce the product in the course of trying to sell it."

The FDA declined to comment on pending litigation and the Justice Department said it would review the appeals court ruling. Public health groups are urging the government to appeal.

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 contradiction of the decisions could mean the case would be settled by the U.S. Supreme Court.

Across the world, Australia's highest court recently upheld the world's toughest laws on cigarette promotion, which force companies to replace their traditional logos and branding with government-approved images of cancer-ridden mouths and blinded eyeballs and warnings.

27 Photos

27 cigarette warning labels nixed by the FDA

[magnumdr]

How does our Government get the right to choose who will quit doing anything that is not illegal to do? Has our Government become like a mother to the freedom of our legal rights here. The US Government has no right to make anyone quit doing anything by taxing it high so people cannot afford to buy it anymore! What will be the next target for our Government to force people to quit doing? So much for our freedom to choose!

[datrebor]

The more people fight for the individual rights the more so called studies them come up with saying why you should quit. When smokers said if we are hurting anyone its just us they could not have that so, I believe very strongly, they Made up the So Called Second Hand Smoke theory. In fact they tried to make up a "Third Hand Smoke" but that did fly. If our Gov cared about Health then explain why they let big tobacco make a cigarette out of 40% fresh tobacco 30% re-hydrated stale tobacco and 30% tobacco too old to re-hydrate and the rest of the plant turned into a tea concentrated sprayed on paper dried shredded. It was said that they add chemicals to make them additive. This has Nothing to do with smoking but a power trip to control the masses only.

[magnumdr]

The US Government should repeal the tobacco taxes leveied from them and also the states. This is the most unfair tax that I have ever seen. In NYC alone the tax on a pack of cigarettes is almost 5 times the cost of the cigarettes alone! Pretty soon we all will loose our right to choose here unless we pay a high tax on our choices!

[dontforget911]

Yes, totally agree, the additional taxes are discriminating against a specific group. The statistics don't convincingly show smoking is the cause of lung cancer. It blows my mind to see some states allow marijuana to be smoked. When it comes to generating revenue to the states then it's fine, bs... Bravo to the tobacco companies to defend themselves!

[nojoy01]

Shucks. And here I was counting on a comeback of the cigarette case (like the ones you can buy on Amazon.com) to make my fortune. You know, a small box that would have pleasant, scenic views and pictures of pretty ladies & buff guys on the outside that would hold a pack of cigarettes & hide those nasty pictures. Of course, the tobacco co's. probably have a warehouse full of 'em ready to ship to their distrubitors. No amount of nasty pictures, PSA's, or fear-mongering will make a cigarette smoker who doesn't want to quit, well, quit. It usually takes something like, oh, dying, to make that happen.

[datrebor]

What happened to listing the ingredients on the pack when they took away the words light, mild, medium and such, so that one would think it was a safer cigarette?

[USATobaccoReport]

notarcig:

http://www.prlog.org/11948702-landmark-electronic-cigarette-settlement-after-7-more-sued.html

A better way may now be available to smokers after settlement.
This is the opening for low cost high quality e-cig that may be clear from infringmet to be made availble.

The problem is other more powerful e-cig brands holding retal c-stores and distutors hostage to current brands. Once c-store are sued for selling patent infringing e-cigs..the clouds will clear and people will look to e-cigs brands that have settled their patent issues and are free to sell at great prices.