Senators Call for Appeal on Graphic Cigarette Warning Labels

March 8, 2012 Updated: March 8, 2012

The toughest tobacco warning labels in history were set to make their mark on cigarette packages later this year. Now a group of U.S. senators are pushing for an appeal to a recent decision that finds the new labels unconstitutional.

Five U.S. senators (all Democrats) sent a letter to the U.S. Justice Department and the Food and Drug Administration (FDA) this week in a call to action. Legislators say a “misguided ruling” from a U.S. District Court “threatens to undermine efforts to prevent the deadly impacts of smoking.”

Warning labels have been seen on cigarette packages for nearly 50 years, but regulators have been eager to send a stronger message.

As part of a 2009 Family Smoking Prevention and Tobacco Control Act, which gives the FDA the authority to regulate tobacco products, cigarette packages would soon feature gruesome pictures of diseased lungs, a cadaver, and smoke billowing from a tracheotomy hole, accompanied by blunt warnings such as “smoking can kill you” and “cigarettes cause cancer.”

The labels are designed to have a significant presence, not only in shock value, but also in scale. Congress required that new warnings be given nearly as much space as branding—occupying the top 50 percent of the front and back panels of all cigarette packages and the top 20 percent of all print advertising.

Legislators argue that the labels provide an “important tool in educating children and adults about the dangers of smoking,” but tobacco companies say the law impacts their freedom of speech, forcing them to serve as the “unwilling mouthpiece” in the federal government’s anti-smoking agenda. U.S. District Court Judge Richard Leon agrees.

“A fundamental tenet of constitutional jurisprudence is that the First Amendment protects ‘both the right to speak freely and the right to refrain from speaking at all,'” Judge Leon wrote in his Feb. 29 ruling. “A speaker typically ‘has the autonomy to choose the content of his own message.’ And ‘for corporations as for individuals, the choice to speak includes within it the choice of what not to say.”‘

In a 19-page report, Judge Leon conceded that there are narrow exceptions where the government may require certain disclosures to protect consumers from confusion or deception, but added that these examples are restricted to “purely factual information.”

In their call for an appeal, legislators offer several compelling facts related to smoking. For example, every year tobacco costs 443,000 American lives and more than $100 billion in health care costs and lost productivity.

But according to Judge Leon, the images to be featured on cigarette packages do nothing to actually convey these facts. He writes that the new warning labels merely serve to symbolize these messages and “are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard.

“To the contrary, the graphic images here 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,” Judge Leon concluded.

The Obama administration filed an appeal on Monday, and the FDA is expected to soon. But for now, the agency has put the project on hold. In a recent statement, regulators said that because of uncertainties caused by ongoing litigation, cigarette manufacturers will not be required to comply with the new label requirements originally planned for September 2012.

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