U.S. Chamber of Commerce Files Friend of Court Brief

Fed. gov. has no authority to take space on packaging to persuade consumers not to buy

Published in CSP Daily News

RICHMOND, Va. -- The U.S. Chamber of Commerce is weighing in on a lawsuit over graphic cigarette warning labels that include the sewn-up corpse of a smoker and a picture of diseased lungs, reported the Associated Press. The group says the federal government has no legitimate authority to take space on a tobacco company's packaging or advertising to persuade consumers not to buy the product.

The pro-business lobbying group filed a friend of the court brief with the U.S. Court of Appeals in Washington late Monday in the lawsuit brought by some of the largest U.S. tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., challenging the Food & Drug Administration's plan to require the new labels be placed on cigarette packs later this year.

Click here to view the friend of the court brief  by the U.S. Chamber of Commerce.

A U.S. District Court judge in November blocked the labels while deciding whether they violate the companies' free speech rights, said the report, ruling that it is likely the cigarette makers would succeed in a lawsuit. The FDA has appealed that decision and oral arguments are set for April.

In its filing, the group that represents the interests of more than three million companies and professional organizations in the United States wrote that that allowing the warning labels would be a "radical departure from traditional government efforts to regulate speech insofar as they force commercial enterprises to disparage the very products that they are lawfully marketing."

The chamber added that the labels are "expressly designed to provoke adverse emotional reactions and inspire fear above and beyond any factual disclosures related to the hazards associated with smoking."

The tobacco companies have questioned the constitutionality of the labels, saying the warnings do not simply convey facts to inform people's decision whether to smoke, but instead force the cigarette makers to display government anti-smoking advocacy more prominently than their own branding. They also say that changing cigarette packaging will cost millions of dollars.

Meanwhile, the FDA has said that the public interest in conveying the dangers of smoking outweighs the companies' free speech rights.

The FDA last June approved nine new warning labels that companies are to print on the entire top half of cigarette packs, front and back. The new warnings, each of which includes a number for a stop-smoking hotline, also must constitute 20% of cigarette advertising, and marketers are to rotate use of the images.

One label depicts a corpse with its chest sewn up and the words "Smoking can kill you." Another label shows a healthy pair of lungs beside a yellow and black pair with a warning that smoking causes fatal lung disease.

( Click here to view the FDA's graphic cigarette warning labels. And click here for previous CSP Daily News coverage of the labels.)

Joining R.J. Reynolds and Lorillard are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes top-selling Marlboros, is not a part of the lawsuit.

The free speech lawsuit is separate from a lawsuit by several of the same companies over the Family Smoking Prevention & Tobacco Control Act. That law, which took effect two years ago, cleared the way for the more graphic warning labels. But it also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.

A federal judge upheld many parts of the law, but the case is now pending before the U.S. 6th Circuit Court of Appeals in Cincinnati.

While the tobacco industry's latest legal challenge may not hold up, it could delay the new warning labels for years, the news agency said. And that is likely to save cigarette makers millions of dollars in lost sales and increased packaging costs.

Tobacco companies are increasingly relying on their packaging to build brand loyalty and grab consumers, the report added. It is one of few advertising spots left to them after the government curbed their presence in magazines, billboards and TV.