Thursday, March 01, 2012

District Court Rules Against FDA, Blocks Graphic Cigarette Warning Labels

Yesterday, a federal district court judge issued what amounts to a permanent injunction against the FDA's implementation of its graphic cigarette warning labels, ruling that these labels violate the First Amendment rights of the cigarette companies by compelling speech, and in a way that goes beyond merely providing factual and noncontroversial information. Judge Richard Leon of the federal district court for the District of Columbia confirmed his earlier decision, in which he issued a preliminary injunction against implementation of the graphic warning labels. The FDA has already appealed the decision in the case, which could potentially go all the way to the Supreme Court.

According to a Wall Street Journal article: "A federal judge Wednesday blocked a U.S. government plan requiring large graphic warning labels on cigarette packs, making it less likely the proposed regulation will go into effect later this year. Judge Richard Leon of the U.S. District Court for the District of Columbia sided with tobacco companies who argued the government was violating their constitutional rights to free speech by requiring them to display the labels—including images of a body on an autopsy table and diseased lungs." ...

"In Wednesday's memorandum opinion, Judge Leon sided with tobacco companies who have argued the new regulations unconstitutionally compel speech, noting the First Amendment protects both the right to speak freely and the right to refrain from speaking at all. The federal judge also said the new labels go beyond ``purely factual and uncontroversial disclosures,'' noting that the image of a man exhaling cigarette smoke through a tracheotomy hole doesn't reflect a typical consequence of smoking. "The graphic images here 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,'' Judge Leon wrote."

In response to the ruling, the Campaign for Tobacco-Free Kids asserted that the decision "ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health."

The Rest of the Story

While there is strong First Amendment precedent that supports the right of the government to require strong warning labels to protect the public health, the graphic warning labels proposed by the FDA are not designed primarily to inform consumers about the health risks of smoking. Instead, they are designed primarily to discourage consumers from using the product and to encourage them to quit smoking using a specific quit-smoking hotline service. In essence, the government is using the cigarette package as a billboard for an anti-smoking advertisement and referral system to recruit smokers for the cessation hot line intervention. In my opinion, this form of compelled speech goes beyond the precedent that the Campaign for Tobacco-Free Kids is citing.

While the government can certainly require Keebler to put a warning on its Vienna Fingers to inform consumers that they contain unhealthy ingredients, it cannot compel Keebler to cover half of its package with a message exhorting potential customers not to buy the product and urging them to call a hot line designed to get consumers to stop buying Keebler products.

Those who are defending the legality of the graphic warning labels appear to be missing the key point. They are dwelling on the argument that warning labels are permissible. But they are failing to address the issue of whether these particular "warnings" are true warnings, or whether they are anti-smoking billboards on the face of a cigarette package. Unless the government directly addresses this issue, it is not going to be successful in appealing Judge Leon's decision.

How, specifically, does requiring companies to post a smoking cessation hot line number on a cigarette pack constitute a health warning? Frankly, to me that seems not a warning but an exhortation to quit smoking.

Finally, I must emphasize that I am not disagreeing with the importance of the government taking actions to encourage smokers to quit. I am, in fact, arguing that the government is going about it in the wrong way. Rather than disguising an anti-smoking campaign on the face of a cigarette pack, why not simply run an anti-smoking campaign of its own? The FDA is apparently working on just such a campaign. It remains to be seen how effective the campaign will be. But that is where the resources and attention should be directed.

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