Judge blocks images of diseased lungs, corpses on cigarette packs

Posted March 01, 2012, at 8:33 a.m.
This combination photo made from file images provided by the U.S. Food and Drug Administration shows two of nine cigarette warning labels from the FDA. A judge on Wednesday, Feb. 29, 2012 blocked the federal requirement that would have begun forcing U.S. tobacco companies to put large graphic images on their cigarette packages later this year to show the dangers of smoking and encouraging smokers to quit lighting up.
U.S. Food and Drug Administration | AP
This combination photo made from file images provided by the U.S. Food and Drug Administration shows two of nine cigarette warning labels from the FDA. A judge on Wednesday, Feb. 29, 2012 blocked the federal requirement that would have begun forcing U.S. tobacco companies to put large graphic images on their cigarette packages later this year to show the dangers of smoking and encouraging smokers to quit lighting up.

RICHMOND, Va. — A judge on Wednesday blocked a federal requirement that would have begun forcing U.S. tobacco companies to put large graphic images on their cigarette packages later this year to show the dangers of smoking and encouraging smokers to quit lighting up.

U.S. District Judge Richard Leon in Washington ruled that the federal mandate to put the images, which include a sewn-up corpse of a smoker and a picture of diseased lungs, on cigarette packs violates the free speech amendment to the Constitution.

He had temporarily blocked the requirement in November, saying it was likely cigarette makers will succeed in a lawsuit, which could take years to resolve. That decision already is being appealed by the government.

Some of the largest U.S. tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., had questioned the constitutionality of the labels, saying the warnings don’t simply convey facts to inform people’s decision whether to smoke but instead force the cigarette makers to display government anti-smoking advocacy more prominently than their own branding. They also say that changing cigarette packaging will cost millions of dollars.

Meanwhile, the Food and Drug Administration has said that the public interest in conveying the dangers of smoking outweighs the companies’ free speech rights.

In his ruling Wednesday, 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 judge also pointed out alternatives for the federal government to curb tobacco use, such as increasing anti-smoking advertisements, raising tobacco taxes, reducing the size and changing content of the labels, and improving efforts to reduce youth access to tobacco products.

The FDA and the Justice Department declined to comment Wednesday. But the Department of Health and Human Services released a statement late Wednesday saying the administration is determined to do everything it can to warn young people of smoking’s dangers.

“This public health initiative will be an effective tool in our efforts to stop teenagers from starting in the first place and taking up this deadly habit,” the statement said. “We are confident that efforts to stop these important warnings from going forward will ultimately fail.”

Floyd Abrams, a lawyer representing Lorillard in the case, said he was pleased with Wednesday’s ruling.

“The government, as the court said, is free to speak for itself, but it may not, except in the rarest circumstance, require others to mouth its position,” Abrams said.

While the government, public health officials, tobacco companies and others “share a responsibility to provide tobacco consumers with accurate information about the various health risks associated with smoking … the goal of informing the public about the risks of tobacco use can and should be accomplished consistent with the U.S. Constitution,” Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said in a statement.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, called Leon’s ruling “wrong on the science and the law.”

“(The warnings) unequivocally tell the truth about cigarette smoking — that it is addictive, harms children, causes fatal lung disease, cancer, strokes and heart disease, and can kill you. What isn’t factual or accurate about these warnings? Not even the tobacco industry disputes these facts,” Myers said in a statement.

The nine graphic images approved by the FDA in June include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother’s kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman weeping; a premature baby in an incubator; and a man wearing a T-shirt that features a “No Smoking” symbol and the words “I Quit.”

The FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20 percent of cigarette advertising, and marketers were to rotate use of the images.

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 free speech lawsuit is separate from a lawsuit by several of the same companies over the Family Smoking Prevention and Tobacco Control Act. That law, which took effect in 2009, cleared the way for the more graphic warning labels and other marketing restrictions. But it 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.

A federal judge upheld many parts of the law, but the case is now pending before the U.S. 6th Circuit Court of Appeals in Cincinnati.

While the tobacco industry’s latest legal challenge may not hold up, it could delay the new warning labels for years. And that is likely to save cigarette makers millions of dollars in lost sales and increased packaging costs.

Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers. It’s one of few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

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