Cigarette smoke accounts for 443,000 deaths yearly as well as countless diseases and out of control rising medical cost. Nevertheless, consumers are free to exercise their right to purchase and consume this dangerous purveyor of death; and cigarette manufacturers remain generally free to profit from an increasing rise in the people addicted to their product. Friday’s court ruling in favor of the tobacco industry highlighted fundamental weaknesses in the government’s aggressive approach to significantly reduce the use of tobacco in the United States. The court of appeals, in a 2-1 vote tossed out the government’s attempt to force tobacco companies into packaging sizable images warning smokers of the dangers of smoking. The majority opinion stated that the requirements were a violation of free speech protections. “These inflammatory images and the provocatively named hotline cannot rationally be viewed as pure attempts to convey information to consumers,” U.S. Circuit Judge Janice Rogers Brown wrote in her majority opinion.
Commonwealth Brands Inc., Liggett Group LLC and Santa FeNatural Tobacco Co. sued the FDA last year, claiming the mandates for cigarette packages, cartons and advertising, passed as part of the Family Smoking Prevention and Control Act violated the First Amendment.
The companies said in court papers that complying with the requirements would cost them a total of about $20 million. The mandate, scheduled to go into effect next month, was put on hold by a lower-court judge while the appeals court considered its legality. The government argued in court papers that nine images selected by the agency to be placed on packages and advertisements are true depictions required by Congress in the law to show the negative health consequences of smoking.
The graphics were supposed to cover the top half of the front and back of cigarette packages and 20 percent of print advertisements. The FDA estimated the visual warnings would help lower the smoking rate by about 0.212 percentage points, according to the lower court judge who also ruled against the FDA.
The Food and Drug Administration was ordered to immediately revise its rules.
“The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal,” wrote Judge Janice Rogers Brown. “FDA failed to present any data — much less the substantial evidence required under the federal law — showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates. The rule thus cannot pass muster” under past court precedent.
The Family Smoking Prevention and Tobacco Control Act, passed in 2009, would have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children.” Also included would have been alternating images of a corpse and smoke-infected lungs.
A group of tobacco companies led by R.J. Reynolds and Lorillard had sued, saying the warnings would dominate and damage the packaging and promotion of their brands. The legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the products.
A federal judge in March had ruled in favor of the tobacco companies. The 2-1 U.S Court of Appeals for the District of Columbia panel has now affirmed that ruling.
Brown and Judge A. Raymond Randolph rejected the FDA’s assertion that it had a governmental interest in “effectively communicating health information” regarding the negative effects of cigarettes.
“The government’s attempt to reformulate its interest as purely informational is unconvincing, as an interest in ‘effective’ communication is too vague to stand on its own,” said Brown, named to the bench by President George W. Bush. “Indeed, the government’s chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: ‘effective’ in what sense?”
In dissent, Judge Judith Rogers said the rules do not violate commercial speech protections.
“The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers,” said Rogers, named to the bench by President Clinton. “The tobacco companies’ decades of deception regarding these risks, especially the risk of addiction, buttress this interest.”
Other color images required under the agency rules would have been: a man smoking through a tracheotomy hole in his throat; smoke wafting from a child being kissed by her mother; and a diseased mouth, presumably from oral cancer linked to chewing.
There was no immediate reaction to the ruling from the FDA and from the Justice Department, which defended the law in court.
The government can now appeal to the Supreme Court for review, which stands a good chance of accepting the case. A separate federal appeals court in Cincinnati in March concluded that the FDA law was constitutional. Such “circuit splits” are often a good indicator the justices would intervene and offer the final constitutional word.
Health groups condemned the latest decision. “Today’s ruling ignores strong scientific evidence supporting the effectiveness of larger, graphic warning labels in communicating the health dangers of tobacco use,” said Dr. Robert Block, president of the American Academy of Pediatrics. “With 10 million cigarettes sold every minute and almost 3,000 children under the age of 18 starting to smoke each day, this ruling puts children’s lives at risk.”
The word and image warning labels would have covered half of the cigarette packs sold at retail outlets and 20% of cigarette advertising. The warnings were scheduled to appear on cigarette packs beginning next month.
The federal law in question would also regulate the amount of nicotine and other substances in tobacco, and limit promotion of the products and related promotional merchandise at public events like sporting contests. The free speech aspect was the only issue in the current case.
Several other lawsuits over the labels are pending in federal court, part of a two-decade federal and state effort to force tobacco companies to limit their advertising and settle billions of dollars in state and private class-action claims over the health dangers of smoking.
The Campaign for Tobacco-Free Kids, an anti-smoking group, urged the government to appeal the ruling.
On Aug. 15, the High Court of Australia upheld that country’s requirement that cigarettes be sold in uniform packages barring display of company trademarks. New Zealand and the U.K. are among countries whose governments have indicated interest in implementing similar legislation, which takes effect in Australia Dec. 1.