FDA Tables Graphic Cigarette Warning Labels

Published in CSP Daily News

Abandons court battle, scraps current batch of images; will propose new designs

RICHMOND, Va. -- Reacting to successful free speech objections, the federal government has abandoned a legal battle and will not appeal a court decision blocking it from requiring tobacco companies to put large, graphic health warnings on cigarette packages, reported the Associated Press.

As reported in a Raymond James/CSP Daily News Flash on Tuesday, U.S. Attorney General Eric Holder said in a letter obtained by AP that the U.S. Food & Drug Administration will go back to the drawing board and propose new labels.

The government had until Monday to ask for a U.S. Supreme Court review, said the report.

A judge ruled last year that the requirement violated First Amendment free speech protections. An appeals court upheld that ruling.

"The Solicitor General has determined ... not to seek Supreme Court review of the First Amendment issues at the present time," Holder wrote in a letter to House Speaker John Boehner notifying him of the decision.

Some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings on cigarette packs as part of the 2009 Family Smoking Prevention & Tobacco Control Act that, for the first time, gave the federal government authority to regulate tobacco.

The nine labels originally set to appear on store shelves last year would have represented the biggest change to U.S. cigarette packs in 25 years.

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers, said the report--one of the few advertising spaces left to them after the government curbed their presence in magazines, billboards and TV. They had argued that the proposed warnings went beyond factual information into anti-smoking advocacy.

The government, however, argued the images were factual in conveying the dangers of tobacco.

The nine graphic warnings proposed by the FDA included images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, a plume of cigarette smoke enveloping an infant receiving a mother's kiss, a diseased lung, tobacco-stained teeth and damaged lips and gums, a corpse with its chest sown up and more. These were accompanied by assertions that 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.

In a statement obtained by the news agency, the FDA said it would "undertake research to support a new rulemaking consistent with the Tobacco Control Act." The FDA did not provide a timeline for the revised labels.

Floyd Abrams, a noted First Amendment lawyer who represented Lorillard Tobacco Co. in the challenge, said he wasn't surprised by the Justice Department's decision not to appeal.

"The graphic warnings imposed by the FDA were constitutionally indefensible," he told AP.

Joining RJR, owned by Winston-Salem, N.C.-based Reynolds American Inc., and Lorillard Tobacco, owned by Greensboro, N.C.-based Lorillard Inc., in the lawsuit were Commonwealth Brands Inc., Bowling Green, Ky., Liggett Group LLC, Mebane, N.C., and Santa Fe Natural Tobacco Co. Inc., Santa Fe, N.M.

Richmond, Va.-based Altria Group Inc., parent company of Philip Morris USA, was not a part of the lawsuit.

The case is separate from a lawsuit by several of the same tobacco companies over other marketing restrictions in the 2009 law. Last March, a federal appeals court in Cincinnati ruled that the law was constitutional. The companies in October petitioned the U.S. Supreme Court to review that case, AP said.