Articles on Federal Appeals Court Argument on Graphic Health Warnings

Appeals court considers whether graphic health warnings on cigarettes violate 1st Amendment

By FREDERIC J. FROMMER

Associated Press

10 April 2012

(c) 2012. The Associated Press. All Rights Reserved.

WASHINGTON (AP) - A federal appeals court Tuesday weighed the constitutionality of requiring large graphic photos on cigarette packs to show that smoking can disfigure and even kill people, with two of the three judges questioning how far the government could go.

Some of the nation's largest tobacco companies, including R.J. Reynolds, sued to block the mandate. They argued that the government's proposed warnings go beyond factual information into anti-smoking advocacy. The Obama administration responded that the photos of dead and diseased smokers are factual.

In February, U.S. District Judge Richard Leon ruled that the requirement ran afoul of the First Amendment's free speech protections and blocked the requirement. The government appealed.

The nine graphic warnings proposed by the Food and Drug Administration 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. Some other images 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.

At Tuesday's hearing, Judge A. Raymond Randolph, an appointee of Republican President George H.W. Bush, asked if the government could go so far as to require cars to carry a warning that "speed kills," with a graphic illustration. Justice Department attorney Mark B. Stern replied that he didn't think there would be any problem with that.

Another Republican appointee, Judge Janice Rogers Brown, asked if the government could mandate a cigarette warning that said, "Stop! If you buy this product, you are a moron," or "Smokers are idiots."

"No, I don't think saying smokers are idiots is accurate," Stern replied. He said such a warning would be "problematic."

Brown also questioned if the government was on a path to put warnings on other legal products.

"Where does this stop?" asked Brown, who like District Judge Leon was appointed by Republican George W. Bush.

Lawyers for the tobacco companies made a similar argument in their brief. They superimposed the FDA tobacco image of a cadaver onto a McDonald's bag with the warning that fatty foods may cause heart disease, and the FDA's image of a premature baby in an incubator on a bottle of alcohol with a warning that drinking during pregnancy can cause birth defects. They also showed a Hershey's chocolate bar with half the wrapper covered by a picture of a mouth of rotting teeth and a warning that candy causes tooth decay.

Stern said those comparisons trivialized an important issue. "Addiction really means addiction," he said, and it was not like eating candy.

The third judge on the panel, Judith W. Rogers, an appointee of Democrat Bill Clinton, didn't ask any questions of the Obama administration, but she grilled Noel J. Francisco, a lawyer for tobacco companies. Rogers asked Francisco if he was challenging the accuracy of the FDA's text warnings, such as smoking causing cancer and heart disease. The lawyer said he was not, but that the government was going beyond mere facts by including a phone number to quit.

"The government is trying to send a powerful message: Quit smoking now," he said. When the message tells people to live a certain way, it crosses the line from facts to advocacy, he argued.

But Randolph said he had a hard time finding that line, adding that the judges were in "new territory."

In his ruling, Leon wrote that the graphic images "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."

"While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear," Leon wrote.

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.

Last month, a federal appeals court in Cincinnati ruled that the law was constitutional.

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.

WSJ: US Appeals Court Struggles On Constitutionality Of Cigarette Labels

By Jennifer Corbett Dooren

10 April 2012

Dow Jones News Service

(c) 2012 Dow Jones & Company, Inc.

WASHINGTON (Dow Jones)--A Washington-based federal appeals court Tuesday struggled with whether federally mandated graphic cigarette warning labels were constitutional but suggested during a hearing that a lower court may not have properly ruled on the matter.

In February, Judge Richard Leon of the U.S. District Court for the District of Columbia ruled that proposed graphic images that would be placed on cigarette packages violated First Amendment free-speech rights. The U.S. government appealed that ruling to the U.S. Court of Appeals District of Columbia, which held a hearing on the case Tuesday.

Two of the three judges on the Washington-based U.S. Appeals Court appeared to question whether the lower D.C. court properly decided the case on constitutional grounds.

"You can't use cigarettes safely. So what?" said Judge A. Raymond Randolph. "What's that got to do with the First Amendment. I have a fundamental problem with the way both sides have approached this case and the district judge."

(This story and related background material will be available on The Wall Street Journal website, WSJ.com.)

Another judge, Janice Rogers Brown, questioned whether the lower court should have looked at the selected graphic images and whether they "accurately illustrate the textual statements."

But Ms. Brown also questioned whether the proposed warnings crossed a line from providing factual information to advocacy, a position argued by lawyers for the tobacco companies. "Where does this stop? Can you have 50% of the package saying, 'Stop, if you buy this ... you are a moron'?" Ms. Brown said.

The Food and Drug Administration was given the authority by Congress to regulate tobacco as part of 2009 legislation. The legislation also mandated stronger warnings on cigarette packages.

The FDA had proposed to require tobacco makers to place stronger warnings and graphic pictures on the top half of cigarette packages starting in September 2012.

The images include pictures of diseased lungs, a body on an autopsy table and a man blowing cigarette smoke out of a tracheostomy hole in his neck that will be combined with stronger wording such as "smoking can kill you." Current labels warning of smoking's dangers are contained in a small box with black-and-white text.

The stronger wording isn't being contested but several tobacco companies, including Reynolds American Inc. (RAI) andLorillard Inc. (LO), have sued the FDA in federal court, arguing that the graphic images and size violate the First Amendment's Free Speech Clause.

The proposed warnings are on hold while legal proceedings continue.

In March another court, the U.S. Court of Appeals for the Sixth Circuit, largely upheld the U.S. government's authority to regulate tobacco products, including requirements calling for stronger, graphic warnings on cigarettes.

Legal observers believe the U.S. Supreme Court will ultimately decide on key provisions of the tobacco law, such as the graphic warning labels. The Sixth Circuit ruling involved the overall tobacco law, while the case in Washington focuses on the specific graphic warning labels as proposed by the FDA.

Mr. Randolph, one of the appeals court judges, said an important part of the case is looking at law involving agency rule-making procedures. On the constitutional issue involving the graphic images, the judge said, "We are in new territory."

Altria Group Inc. (MO), the parent company of Philip Morris USA, isn't a party to lawsuits involving the federal tobacco law but the company has expressed concerns about the graphic warning requirements.