Two Advertising Industry Groups Join Lawsuit Against FDA's Graphic Cigarette Warning Requirement

Two advertising industry groups have filed amicus briefs with the D.C. District Court, seeking to join the lawsuit by several tobacco companies, which seek an injunction against the FDA's proposal to require graphic warning labels on cigarette packages.

According to an article in the Richmond Times-Dispatch: "'The new cigarette warnings are expressly designed to be propagandistic rather than informative,' wrote the groups who represent hundreds of U.S. companies and thousands of advertising professionals. 'If the government can deputize tobacco companies through their product packaging and advertisements to deliver its message, there is no reason it could not do so for other things — and history shows it will not hesitate to do so.'"

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The advertising groups' comments mirror my own observations about the case. The central question is whether the "warning labels" are simply health warnings or whether they are actually advertisements that directly discourage product purchase. While the government has a legitimate interest in warning consumers about the health hazards of consumer products, it would be a violation of free speech rights to require those companies to go beyond warning labels and actively and directly discourage product purchase on the product labels.

The advertising groups raise this legitimate question: if the court rules that the FDA is justified in requiring anti-smoking advertisements on cigarette packages, then doesn't such a decision open the door to a floodgate of state actions to require all sorts of anti-product advertising on consumer product labels?

For example, could the New York City Health Department not then require that McDonalds display prominent anti-obesity posters at point of purchase of Big Macs, with gross pictures of fat-laden arteries and a message urging consumers not to consume this fat-laden product?

Could the Boston Public Health Commission not require that coffee containers include a graphic picture of a person suffering a cardiac arrhythmia, with a warning discouraging consumers from drinking coffee out of fear of suffering such an arrhythmia?

Clearly, the court must preserve the demarcation between a legitimate health warning message designed to inform consumers of non-controversial, factual information and persuasive advertising that goes beyond a mere warning message and directly discourages purchase of the product.

I think the FDA is going to have a difficult time convincing the court that graphic ads which display a stop-smoking quitline number are merely health warning messages, and that they do not cross the line into being persuasive advertisements intended to directly discourage the use of the product by consumers.