U.S. appeals court strikes down FDA tobacco warning label requirement
Tobacco companies won't have to put nine new graphic
warning labels from the Food and Drug Administration on cigarette packs this
year after all, an appeals court ruled Friday.
The U.S. Court of Appeals in Washington announced it
upheld a decision barring the federal government from requiring tobacco
companies to put large graphic health warnings on cigarette packages to show
that smoking can disfigure and even kill people.
In a 2-1 decision, the U.S. Court of Appeals in
Washington affirmed a lower court ruling that the requirement ran afoul of the
First Amendment's free speech protections. The appeals court tossed out the
requirement and told the FDA to go back to the drawing board.
Some of the nation's largest tobacco companies, including
R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to
show the dangers of smoking and encouraging smokers to quit lighting up. They
argued that the proposed warnings went beyond factual information into
anti-smoking advocacy. The government argued the photos of dead and diseased
smokers are factual.
The nine graphic warnings proposed by the FDA include
color images of a man exhaling cigarette smoke through a tracheotomy hole in
his throat, and a plume of cigarette smoke enveloping an infant receiving a
mother's kiss. These are accompanied by language that says smoking causes
cancer and can harm fetuses. The warnings were to cover the entire top half of
cigarette packs, front and back, and include the phone number for a
stop-smoking hotline, 1-800-QUIT-NOW. The labels were mandated to appear on
cigarette packs beginning in September, 2012.
In the majority opinion, the appeals court wrote that the
case raises "novel questions about the scope of the government's authority
to force the manufacturer of a product to go beyond making purely factual and
accurate commercial disclosures and undermine its own economic interest - in
this case, by making `every single pack of cigarettes in the country (a) mini
billboard' for the government's anti-smoking message."
The court also wrote that the FDA "has not provided
a shred of evidence" showing that the warnings will "directly
advance" its interest in reducing the number of Americans who smoke.
Tobacco companies increasingly rely on their packaging to
build brand loyalty and grab consumers - one of the few advertising levers left
to them after the government curbed their presence in magazines, billboards and
TV.
"It's a significant vindication of First Amendment
principles," said Floyd Abrams, an attorney representing Lorillard
Tobacco. "There's never been any doubt that the government could require
warnings on products that can have dangerous results. And what the court is
saying is that there are real limits on the ability of the government to
require the manufacturer of a lawful product to denounce the product in the
course of trying to sell it."
The FDA declined to comment on pending litigation and the
Justice Department said it would review the appeals court ruling. Public health
groups are urging the government to appeal.
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 case is separate from a lawsuit by several of the
same tobacco companies over the 2009 Family Smoking Prevention and Tobacco
Control Act, which cleared the way for the more graphic warning labels and
other marketing restrictions. The law 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.
In March, a federal appeals court in Cincinnati ruled
that the law was constitutional. The contradiction of the decisions could mean
the case would be settled by the U.S. Supreme Court.
Across the world, Australia's highest court recently
upheld the world's toughest laws on cigarette promotion, which force companies
to replace their traditional logos and branding with government-approved images
of cancer-ridden mouths and blinded eyeballs and warnings.
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