Big Tobacco Can Keep Little Warnings

WASHINGTON (CN) - The D.C. Circuit affirmed that the FDA's imposition of large, graphic warnings on cigarette packages -- some displaying pictures of dead bodies and body parts -- violates the tobacco industry's First Amendment rights.

"This 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," Judge Janice Brown wrote for a three-judge panel.

Judge Arthur Randolph joined in Brown's opinion. Judge Judith Rogers sided with the FDA, in dissent.

The FDA adopted the rule under the Family Smoking Prevention and Tobacco Control Act of 2009. The rule would have forced tobacco companies to cover up to half of the front and back of cigarette boxes and the top 20 percent of their cigarette ads with new text and graphic warnings. The rule was to take effect on Oct. 22 this year, but Big Tobacco sued and won an injunction, and then summary judgment in Federal Court.

"The dissent's argument that cigarette packages and other advertisements that fail to prominently display the negative health consequences of smoking are misleading ... seems to blame the industry for playing by the government's rules," Judge Brown wrote. "The companies have never argued that no disclosure requirements are warranted; they merely object to the form and content of the specific requirements proposed by the FDA."

Brown cited the tobacco industry's willingness to comply with "a number of new disclosure requirements," agreed that the "shocking graphics" are forced speech that could prove disastrous to industry profits.

Rogers wrote in dissent: "In affirming summary judgment for tobacco companies, the court applies the wrong level of scrutiny, disregarding the tobacco companies' history of deceptive advertising and the government's stated 'primary goal, which is to effectively convey the negative health consequences of smoking on cigarette packages and in advertisements.'"

Rogers' dissent cited the inherent dangers of smoking, and the appropriateness of the FDA's action to "level the playing field" against the billion-dollar public relations machine run by Big Tobacco.

R.J. Reynolds, Lorillard, and the Liggett Group led the pack of tobacco companies fighting the graphic messages. The tobacco industry has attacked several aspects of the Obama administration's smoking prevention law since it was signed into law in 2009.

The FDA appealed the injunction and summary judgment, to no avail.

The three-judge appeals court panel ruled that the graphic warnings themselves might be misleading, and are used to evoke an emotional response.

"In fact, many of the images do not convey any warning information at all, much less make an 'accurate statement' about cigarettes," Brown wrote.

The warnings proposed by the FDA are similar to warnings that appear on cigarette boxes in numerous foreign countries, including Australia and Canada. The proposed images include a dead body lying on an autopsy table and diseased body parts.

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