Bloomberg News

Cigarette Makers Can’t Be Forced to Use Graphic Warnings

February 29, 2012

The U.S. Food and Drug Administration was blocked by a federal judge from requiring tobacco companies to put graphic health warnings on cigarette packaging.

U.S. District Judge Richard Leon in Washington said the government’s rule violates the tobacco companies’ rights to free speech.

“These mandatory graphic images violate the First Amendment by unconstitutionally compelling speech,” Leon wrote in today’s decision.

Under direction from Congress, which wanted tobacco companies to use color graphics depicting the negative health consequences of smoking, the FDA selected nine images, including ones of a corpse and cancerous lungs. The FDA wanted to require tobacco companies beginning Sept. 22 to put one of the labels on each pack of cigarettes, pairing the images with text such as “Smoking can kill you.”

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, Leon wrote in his opinion.

Lorillard, Reynolds

Units of Lorillard Inc. (LO) and Reynolds American Inc. (RAI), along with Commonwealth Brands Inc. and Liggett Group LLC, sued the FDA in August, claiming the mandates for cigarette packages, cartons and advertising would violate the First Amendment. The companies said in court papers that it would cost them a combined total of about $20 million to meet the 2012 deadline.

“The opinion is a straightforward and clear affirmation that compelled speech by the government is not only rarely constitutional but plainly unconstitutional in this case,” Floyd Abrams, a lawyer for Lorillard, said in a phone interview.

Michelle Bolek, an FDA spokeswoman, said in an e-mail that the agency doesn’t comment on litigation as a matter of policy.

Christopher Hansen, president of the American Cancer Society Cancer Action Network, said the ruling “is bad for public health” and a “victory for big tobacco.”

“Larger, graphic warning labels have the potential to encourage adults to quit smoking cigarettes and deter children from starting in the first place,” Hansen said in an e-mailed statement.

U.S. cigarette packs and ads now carry one of four text warnings under a federal law enacted in 1984. The messages include “Cigarette Smoke Contains Carbon Monoxide” and “Smoking Causes Lung Cancer, Heart Disease, Emphysema and May Complicate Pregnancy.” They aren’t paired with images.

‘Toxic Qualities’

Representative Henry Waxman, a California Democrat, said in a statement that Congress considered First Amendment issues when it enacted the graphic warnings law in 2009.

“These provisions were informed by scientific evidence showing that current warning labels have run their course and that labels with graphic warnings would be more effective in protecting the public’s health from tobacco’s addictive and toxic qualities,” Waxman said.

Canada, the U.K. and Brazil are among countries that require graphic cigarette warnings. One in five Canadian smokers reported smoking less as a result of graphic labels in a 2004 study of more than 600 people.

The case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-cv-01482, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Sara Forden in Washington at sforden@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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