Ruling Against New Cigarette Warnings
Monday, November 7, 2011
Posted by: Natalia Gromov
FOR IMMEDIATE RELEASE: November 7, 2011
CONTACT: Marie Cocco, 202-296-5469
Ruling Against New Cigarette Warnings Is Wrong on the Law and the Science
Justice Department Should Appeal to Protect Public Health
Statement of Matthew L. Myers
President, Campaign for Tobacco-Free Kids
WASHINGTON, DC (November 7, 2011) – A federal judge’s ruling blocking implementation of new, graphic cigarette warning labels is wrong on the science and wrong on the law. The Justice Department should appeal the decision by U.S. District Court Judge Richard Leon to protect public health and preserve a critical requirement of the landmark 2009 law giving the Food and Drug Administration the authority to regulate tobacco products. If allowed to stand, this ruling would make it impossible to implement any effective warning labels.
Judge Leon’s ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness. It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health. Given the overwhelming evidence of the need for these warnings and the tobacco industry’s own admission of the factual accuracy of the warning statements, we are confident that this decision will not be the last word on the new warnings. It is but one decision in a long legal battle that could end up before the U.S. Supreme Court, and another federal judge has already upheld the law’s requirement for large, graphic cigarette warnings.
Studies around the world and evidence presented to the FDA have repeatedly shown that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about the health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit (see our fact sheet summarizing the evidence at: http://www.tobaccofreekids.org/research/factsheets/pdf/0325.pdf). Because of that evidence, at least 43 other countries now require large, graphic cigarette warnings.
Legally, the ruling ignores the extensive record established by Congress showing that the warnings are consistent with the First Amendment – a record that led another federal judge to uphold the warnings requirement. In January 2010, U.S. District Court Judge Joseph H. McKinley in Bowling Green, Kentucky, relied on a wealth of scientific studies and legal precedent. Noting that the labels accurately convey the health risks of smoking, Judge McKinley said: "The government’s message is objective and has not been controversial for decades.” He ruled that the new warning labels are legal because they are "sufficiently tailored” to meet the government’s substantial interest in effectively alerting the public to the dangers of smoking.
The graphic warnings were mandated by a large, bipartisan majority of Congress.Lawmakers relied on an extensive record showing that the current, text-only warnings – which are printed on the side of cigarette packs and haven’t been updated since 1984 – are unnoticed and stale.
It is obvious why tobacco companies filed this suit. They continue to spend billions of dollars to play down the health risks of smoking and glamorize tobacco use. These new warnings will tell the truth about how deadly and unglamorous cigarette smoking truly is. Research has found that pack-a-day smokers could be exposed to cigarette health warnings more than 7,000 times per year. The new warnings provide a powerful incentive for smokers to take the life-saving step of quitting and for kids never to try that first cigarette.
The law requires that all cigarette packs carry the new warnings starting in September 2012. The warnings must cover the top half of the front and back of cigarette packs and 20 percent of cigarette advertisements, and they must contain color graphics depicting the negative health consequences of smoking. The FDA has authority to periodically revise the warnings to keep them fresh and effective based on the latest science. They serve the compelling goal of reducing the death and disease caused by tobacco use, which kills more than 400,000 Americans and costs the nation $96 billion in health care expenditures each year.
The Justice Department must now immediately appeal Judge Leon’s ruling, so that implementation of the warning label requirement can go forward without delay – a delay that will only serve the interests of the tobacco industry selling more of its addictive and deadly products.
Congress approved the 2009 law with broad, bipartisan support. Its sponsors included U.S. Reps. Henry Waxman (D-CA) and Todd Platts (R-PA), former U.S. Sen. Christopher Dodd (D-CT) and the late U.S. Senator Edward Kennedy (D-MA). U.S. Sen. Mike Enzi (R-WY) championed the requirement for large, graphic cigarette warnings.
Judge blocks FDA rule requiring graphic images on cigarette packs of the dangers of smoking
By NEDRA PICKLER
7 November 2011
(c) 2011. The Associated Press. All Rights Reserved.
WASHINGTON (AP) - A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images including dead and diseased smokers on their cigarette packages.
U.S. District Judge Richard Leon ruled that it's likely the cigarette makers will succeed in a lawsuit to block the requirement. He stopped the requirement until the lawsuit is resolved, which could take years.
Leon found the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about the health risks of smoking or go beyond that into advocacy -- a critical distinction in a case over free speech.
The packaging would have included 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"
"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking -- an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his 29-page opinion. He pointed out that at least some were altered photographs to evoke emotion.
The judge also pointed out the size of the labels suggests they are unconstitutional -- 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. Leon said the labels would amount to a "mini-billboard" for the agency's "obvious anti-smoking agenda."
The Justice Department argued that the images, coupled with written warnings, were designed to communicate the dangers to youngsters and adults. The FDA declined to comment on the judge's ruling.
Matthew Myers, president of the Campaign for Tobacco-Free Kids, urged the Obama administration to appeal the ruling that he said "is wrong on the science and wrong on the law." He said a delay would only serve the financial interests of tobacco companies that spend billions to downplay the health risks of smoking and glamorize tobacco use.
"Studies around the world and evidence presented to the FDA have repeatedly shown that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about the health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit," Myers said in a statement. "Because of that evidence, at least 43 other countries now require large, graphic cigarette warnings."
Congress instructed the FDA to require the labels, following the lead of the Canadian regulations that require similarly graphic images on cigarette packs. The cigarette makers say their products have had Surgeon General warnings for more than 45 years, but that they never filed a legal challenge against them until these images were approved.
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, and the graphic labels could cost them millions in lost sales and increased packaging costs.
The cigarette makers that sued the FDA are R.J. Reynolds Tobacco Co. of Winston-Salem, N.C., Lorillard Tobacco Co. of Greensboro, N.C., Commonwealth Brands Inc. of Bowling Green, Ky., Liggett Group of Mebane, N.C., and Santa Fe Natural Tobacco Co. of Santa Fe, N.M.
AP Tobacco Writer Michael Felberbaum in Richmond, Va., contributed to this report.
Court Opinion: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1482-38
Source: Meg Riordan, Director, Policy Research, Campaign for Tobacco-Free Kids