U.S. Government Trying Again on Cigarette Warning Labels

Seeking full court review of graphic pack images

RICHMOND, Va. -- The U.S. government is asking a federal appeals court to rehear a challenge to a Food & Drug Administration (FDA) requirement that tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people, reported the Associated Press.

The U.S. Department of Justice filed a petition Tuesday asking for the full court to rehear the case after a three-judge panel of the U.S. Court of Appeals in Washington affirmed in August a lower court ruling blocking the mandate, saying it ran afoul of the First Amendment's free speech protections.

The court rarely grants such appeals, AP said.

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. 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 were intended to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline.

(Click here for previous CSP Daily News coverage of the warning labels.)

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers--one of the few advertising options left to them after the government curbed their presence in magazines, billboards and TV.

In a two-to-one decision, the appeals court panel 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.

But in its appeal seeking a full court rehearing, the government argued that the text of the new warnings are "indisputably accurate" and the format, including the use of graphics, is tailored to the demand of a "market in which the vast majority of users become addicted to a lethal product before age 18."

It also argued that the First Amendment does not require the government to show how one part of a multi-faceted anti-smoking public health campaign directly reduces smoking rates.

In recent years, more than 40 countries or jurisdictions have introduced labels similar to those created by the FDA. The World Health Organization (WHO) said in a survey done in countries with graphic labels that a majority of smokers noticed the warnings and more than 25% said the warnings led them to consider quitting.

Joining Winston-Salem, N.C.-based R.J. Reynolds, owned by Reynolds American Inc., and Greensboro, N.C.-based Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Bowling Green, Ky., Liggett Group LLC, Mebane, N.C., and Santa Fe Natural Tobacco Co. Inc., Santa Fe, N.M.

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 & 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, said AP.

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