New Study on Graphic Warning Labels Provides Further Evidence that They are Unconstitutional

A new study on the effectiveness of cigarette graphic warning labels published in the current issue of the American Journal of Preventive Medicine inadvertently provides evidence that the FDA's requirement that tobacco companies place these "warnings" on their cigarette packs is unconstitutional, as it compels speech that is not purely factual.

(See: Trasher JF, et al. Cigarette Warning Label Policy Alternatives and Smoking-Related Health Disparities. American Journal of Preventive Medicine 2012; 2012;43(6):590–600.)

The study was intended to test the effectiveness of graphic warning labels in deterring smoking among adult smokers. A sample of 1000 adult smokers was divided into experimental and control groups. The control group was shown the current text-only warnings while the experimental groups were shown a series of graphic pictorial warnings. Subjects were asked to rate the warnings in terms of credibility, relevance, and perceived effectiveness.

The study found that pictorial warnings were rated as more effective and concludes that such warnings are effective in encourage smoking cessation: "A cost-effective means of intervention, pictorial labels and specifically graphic imagery have the potential to significantly influence adult smokers to understand the range and magnitude of smoking-related risks, while encouraging them to quit."

The Rest of the Story

It is a huge stretch to conclude from this study that pictorial cigarette warnings are effective in promoting smoking cessation among adult smokers. The study merely tested the perceived effectiveness of the labels following a single exposure occurring in a laboratory setting and did not measure any actual change in behavior. There is strong evidence that there is a rapid wear-out effect whereby smokers get used to the warnings quickly and they fail to motivate quitting after this wear-out occurs.

This type of evidence is simply not going to withstand scientific scrutiny by the courts. The D.C. Court of Appeals has already let it be known that it is not going to be swayed by this type of experimental evidence. There are no convincing studies that demonstrate an actual effect of graphic warning labels on smoking behavior and the FDA admitted as much.

But the more interesting aspect of the rest of the story is that this study inadvertently provides evidence for the tobacco companies to bolster their argument that the graphic warning labels are unconstitutional. The key issue is whether the labels are merely presenting factual information or whether they are attempting to promote smoking cessation by stirring emotions and going beyond merely providing facts to warn users about the health effects.

According to this study: "The tobacco industry has argued that the FDA’s proposed imagery is not real and involves emotional appeals instead of the simple transmission of risk information. However, smokers in the present study rated the graphic imagery as more credible, personally relevant, and effective than either textual content or alternative imagery that could be used in its place."

And how, exactly, did the study measure the effectiveness of the warning labels? One of the questions used to assess effectiveness was whether: “The health warning label makes you think about quitting.” Only after this question was asked were respondents asked to rate the overall effectiveness of the warning labels. Thus, it was clear to respondents that the effectiveness of the warning labels was to be assessed in terms of the degree to which they encouraged smoking cessation.

Clearly, then, the intended purpose of the warning labels in the eyes of tobacco control practitioners is not merely to provide health information but to effectively encourage smoking cessation. This is precisely the tobacco industry's argument and this paper helps to confirm that argument. These labels are not merely thought of in the tobacco control movement as a mechanism to effectively inform smokers about the health consequences of smoking. They are thought of and intended as a mechanism to persuade smokers to quit.

In other words, the FDA is forcing the tobacco companies to use their cigarette packages as a sort of anti-smoking billboard in which they must encourage consumers not to use that product. This goes beyond the provision of factual information and therefore makes the warning labels subject to a higher level of scrutiny. The labels do not pass that higher level of scrutiny because there is not sufficient evidence to demonstrate that they will be effective for their intended purpose and it cannot be argued that the intervention is the least intrusive one available for this purpose.