'Not a Shred of Evidence' Graphic Labels Reduce Smoking

Published in CSP Daily News

Cigarette packaging challenge may go before the U.S. Supreme Court

WASHINGTON -- A U.S. appeals court on Friday struck down a law that requires tobacco companies to use graphic health warnings, such as of a man exhaling smoke through a hole in his throat.

The 2-1 decision by the court in Washington, D.C., contradicts another appeals court's ruling in a similar case earlier this year, setting up the possibility the U.S. Supreme Court will weigh in on the dispute, according to a Reuters report.

The court's majority, as reported in a Raymond James/CSP Daily News Flash on Friday, in the latest ruling found the label requirement from the U.S. Food and Drug Administration violated corporate speech 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," wrote Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit, according to Reuters.

“These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting.”

The FDA "has not provided a shred of evidence" showing that the graphic labels would reduce smoking, Brown added.

The court relied heavily on data included in the FDA’s regulation that showed the graphic warnings would have little to no effect in reducing tobacco use. In particular, the FDA’s analysis of the regulation estimated that the warnings would likely cause no statistically significant change in U.S. smoking rates.

Five tobacco companies representing most of the major cigarette makers in the United States challenged the FDA rules: Reynolds American Inc.; Lorillard Inc.; Commonwealth Brands Inc., which is owned by Britain's Imperial Tobacco Group Plc; Liggett Group LLC and Santa Fe Natural Tobacco Co Inc. Altria Group/Philip Morris is not a party to the lawsuit.

The FDA has argued the images of rotting teeth and diseased lungs are accurate and necessary to warn consumers--especially teenagers--about the risks of smoking, according to Reuters.

The health agency said on Friday that it does not comment on possible, pending or ongoing litigation. The U.S. Department of Justice, which argued the case for the FDA, said it needs to review the ruling before deciding on next steps.

The Campaign for Tobacco-Free Kids, which has vigorously supported stricter cigarette laws, urged the government to appeal.

"Today's ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings," Matthew Myers, the group's president, said in a statement.

Officials at R.J. Reynolds Tobacco Co., however, were pleased with the ruling.

"The Court of Appeals agreed with Reynolds that consumers can and should be fully informed about the risks of tobacco use in a manner consistent with the U.S. Constitution,” Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said in a statement. “Reynolds is committed to providing tobacco consumers with accurate information about the various health risks associated with smoking.”