USA: Court Blocks Pictorial Warnings

Nov 9, 2011

A federal judge on Monday blocked a Food and Drug Administration requirement that tobacco companies put big new graphic warning labels on cigarette packages by next September.

In a preliminary injunction, Judge Richard J. Leon of United States District Court in Washington ruled that cigarette makers were likely to win a free speech challenge against the proposed labels, which include staged photos of a corpse and of a man breathing smoke out of a tracheotomy hole in his neck.

The judge ruled that the labels were not factual and required the companies to use cigarette packages as billboards for what he described as the government’s “obvious anti-smoking agenda!”

The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster the warnings on tobacco packages. The agency has said they are the most significant change to health warnings in 25 years.

The Justice Department is reviewing the ruling, a spokesman, Charles S. Miller, said. The F.D.A. declined to comment, a spokeswoman said.

If the ruling is appealed – as both sides expect – it would join a different federal judge’s ruling on similar issues on appeal and raise the possibility that the issue will be decided by the United States Supreme Court.

Floyd Abrams, a New York lawyer and First Amendment specialist who argued the case for Lorillard Tobacco of Greensboro, N.C., praised the ruling. He said the companies had just objected to “grotesque” images, but not to new words of warning.

“It’s basically rooted in the notion that compelled speech by the government is presumptively unconstitutional,” Mr. Abrams said. “The only exception that could fit here is the one which says that the government can require warnings to be placed on products including tobacco products, but that the warnings must be factual and uncontroversial in nature.”

Five tobacco companies had challenged the selection of nine specific graphic warnings as an unconstitutional intrusion on commercial free speech. The judge agreed with them on almost every point, saying the companies would suffer irreparable harm if the provision were enforced before it was fully decided in courts, a process that is likely to take years.

“It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information,” Judge Leon wrote.

“At first blush, they appear to be more about shocking and repelling than warning,” Judge Leon added in a footnote.

Antismoking activists called on the Justice Department to appeal immediately.

“This ruling presents a direct and immediate threat to public health,” Charles D. Connor, president and chief executive of the American Lung Association, said in a statement. “The tobacco industry’s efforts to halt the replacement of cigarette warning labels that are 25 years old, ineffective and hidden on the side of packages, will result in more lives lost to tobacco.”

Matthew L. Myers, a lawyer and president of the Campaign for Tobacco-Free Kids, a Washington advocacy group, said Judge Leon had sympathized with tobacco companies during oral arguments.

“The government has been expecting this decision and will appeal,” Mr. Myers said. “In addition, many of the same issues are now pending before a panel of the United States Court of Appeals for the Sixth Circuit because a federal judge in Kentucky reached a decision different than Judge Leon’s decision today.”

In that case, Judge Joseph H. McKinley Jr. ruled the cigarette makers could be forced to put graphic images and warnings on the top half of their packages, as Congress required. But Judge Leon noted that Judge McKinley had not seen the actual proposed images.

Judge Leon was appointed to the bench in 2002 by President George W. Bush. Last year, Judge Leon also ruled against the F.D.A. over e-cigarettes, an electronic device that looks like a cigarette and delivers nicotine, saying they should be regulated as tobacco products rather than under the stricter regimen as drug delivery devices. The government has not appealed that case.

The Family Smoking Prevention and Tobacco Control Act of 2009 gave the F.D.A. authority for the first time to regulate tobacco products. It included a provision directing the F.D.A. to require larger, graphic warning labels covering the top half of the front and back of cigarette packs by Sept. 22, 2012, as well as 20 percent of print advertising.

The F.D.A. had studied 36 images and narrowed them down to nine after surveys of effectiveness. The photos are similar to some included with cigarettes in Canada. But the tobacco companies argued, and the judge agreed, that the F.D.A. could not prove the images would make a statistically significant difference in smoking rates in the United States.

“We are pleased with the judge’s ruling and look forward to the court’s final resolution of this case,” Bryan D. Hatchell, a spokesman for R.J. Reynolds Tobacco of Winston-Salem, N.C., makers of Camel cigarettes, said after the ruling.

Other plaintiffs in the suit are Commonwealth Brands, the Liggett Group, and Santa Fe Natural Tobacco. The Altria Group, parent company of Philip Morris, makers of the dominant brand of Marlboro cigarettes, did not join the lawsuit. Altria was also the only major cigarette maker to support the new legislation.

Source: New York Times (November 7, 2011)