And Now for a Laugh: Tobacco's Case Against New Cigarette Warnings

By: Marlys Harris

Smoke is (figuratively) pouring out of the noses and ears of the nation's tobacco companies. What's got them fuming are scary new graphics the Food and Drug Administration is requiring them to place on cigarette packages starting in October 2012. So a few days ago, five of the largest companies (Commonwealth Brands, Liggett, Lorillard, R.J. Reynolds and Santa Fe Natural Tobacco) filed suit against the government claiming that the warnings, which will have to cover 50 percent of the front and back panels of every pack sold, violate their right to free speech and should be ditched.

The nine images, as you can see above, are pretty heavy stuff, featuring, among other things, diseased lungs, brown teeth, suffering babies and a fellow smoking through a tracheotomy hole, all with pretty emphatic headlines. Maybe if tobacco manufacturers had sued saying that these were a bit much I would have been somewhat sympathetic.

But a violation of free speech? Well, according to the complaint, the warnings and labels are "compelled speech" forcing cigarette companies "to advocate against the purchase of their own products." As one piece of evidence, the suit quotes FDA Commissioner Margaret Hamburg, M.D. to the effect that "every single pack of cigarettes in our country will in effect become a mini-billboard" for the government's anti-smoking message. It's unconstitutional, claim the tobacco companies, for the government to "displace or drown out commercial speech regarding lawful products it finds objectionable."

I am no Constitutional scholar, but I would argue that if corporations have a right to free speech, so does the government. If the government isn't allowed to make its case against smoking, how will it defend itself against the extraordinary costs of the habit? The Federal government, after all, spends $17.6 billion on smoking-related Medicaid payments each year, $27.4 billion on smoking-related Medicare payments and another $9.6 billion on same for Veterans Administration patients. Those numbers are about five years old, so the true cost is probably higher than $54.6 billion. (Although the percentage of Americans smoking dropped from about 42 percent in 1965 to some 21 percent in 2009, the number of smokers, 46.6 million, has remained constant, largely due to an increase in population.) Considering the huge to-do over government deficits we've recently endured, the government has a duty to taxpayers to do anything and everything it can to cut these expenditures. There are no other options. Well, there are. The government could simply outlaw tobacco, but I dare say that R.J. Reynolds et al. would not be thrilled with that idea. And the government can't really refuse to pay medical bills for people who have smoking-related illnesses. If it did that, it would also have to cut out payments for people who fell ill because they eat too much, exercise too little, drink excessive amounts of alcohol, drive too fast and get in car accidents -- and, well, you see the problem.

But here's what made me laugh. The lawsuit charges that the FDA's scary warnings aren't factual but make an unfair emotional appeal. Cigarette companies, of course, have never, ever been guilty of making emotional pleas. All those Marlboro ads showing rugged cowboys riding the range and Virginia Slims commercials telling women that they'd "come a long way, baby" were based strictly on cold hard facts. What those facts were, I can't imagine.

The plaintiffs also objected to the graphic showing a baby having smoke blown in his (or her) face (top row, center) with the message "Tobacco smoke can harm your children." Says the complaint: "Upon information and belief, 'Smoke Approaching Baby' employs actors and technological manipulation to create a stylized plume of smoke approaching a baby." Well, I ask you: Do tobacco manufacturers want the FDA to pose a real baby getting real cigarette smoke, stylized or not, blown in its face?

The lawsuit also protested the use of the "Man with Chest Staples" because "the exaggeration in this case is particularly unrealistic because victims of smoking related disease are not typically given autopsies." True, that's because we know what killed them: cigarettes.

The baby in the incubator with the warning "Smoking During Pregnancy Can Harm Your Baby" was unacceptable, tobacco companies said, because it's an animation that "creates a stylized portrayal of an infant suffering." Never mind the cartoons of Joe Camel and his like who created a stylized portrayal of coolness.

The plaintiffs also didn't like the "Man with Oxygen Mask" because he's an actor portraying a person with a respiratory problem -- as though all the people in their own advertising featuring dancing cigarette packs and doctor testimonials were straight off the street.

Funniest or perhaps weirdest of all, however, was the contention that the new rules would reduce smoking rates, according to the FDA, by only .212 percent, which is tantamount to zero. I don't know if that's true or not. Similar warnings on cigarettes in Canada seem to have contributed to a diminution in smoking. But my question is: if the cigarette companies are right and the new warnings will not discourage people from smoking, then why are they bothering to sue?

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