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Judge Blocks Graphic Cigarette Warning Labels

Rules that federal mandate violates free speech rights

WASHINGTON — A judge has blocked a federal requirement that would have forced U.S. tobacco companies to put large graphic images on their cigarette packages later this year to show the dangers of smoking and encouraging smokers to quit lighting up, reported the Associated Press.

U.S. District Judge Richard Leon in Washington ruled that the federal mandate to put the images, which include a sewn-up corpse of a smoker and a picture of diseased lungs, on cigarette packs violates the Constitution’s first-amendment guarantee of freedom of speech.

He had temporarily blocked the requirement in November, saying it was likely cigarette makers will succeed in a lawsuit, which could take years to resolve. The government is already appealing that decision.

Some of the largest U.S. tobacco companies, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., had 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 U.S. Food & Drug Administration (FDA) has said that the public interest in conveying the dangers of smoking outweighs the companies’ free speech rights.

In his ruling Wednesday, Leon wrote that the graphic images “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”

Leon also pointed out alternatives for the federal government to curb tobacco use, such as increasing anti-smoking advertisements, raising tobacco taxes, reducing the size and changing content of the labels and improving efforts to reduce youth access to tobacco products.

The FDA did not immediately provide a comment on Wednesday’s ruling.

Floyd Abrams, a lawyer representing Lorillard in the case, said he was pleased with Wednesday’s ruling. “The government, as the court said, is free to speak for itself, but it may not, except in the rarest circumstance, require others to mouth its position,” Abrams said.

In a separate statement (click here for additional coverage), Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds, said, “We believe governments, public health officials, tobacco manufacturers and others share a responsibility to provide tobacco consumers with accurate information about the various health risks associated with smoking; however, the goal of informing the public about the risks of tobacco use can and should be accomplished consistent with the U.S. Constitution.”

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

The FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20% of cigarette advertising, and marketers were to rotate use of the images.

Joining Winston-Salem, N.C.-based R.J. Reynolds, owned by Reynolds American Inc. (RAI), and Greensboro, N.C.-based Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Bowling Green, Ky., Liggett Group LLC, Mebane, N.C., and RAI’s Santa Fe Natural Tobacco Co. Inc., Santa Fe, N.M.

Richmond, Va.-based Altria Group Inc., parent company of the nation’s largest cigarette maker, Philip Morris USA, 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 in 2009, cleared the way for the more graphic warning labels and other marketing restrictions. 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, AP 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. It is one of few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

Meanwhile, the FDA issued a letter that said, “Due to ongoing litigation, the implementation date for FDA’s final rule entitled ‘Required Warnings for Cigarette Packages & Advertisements’ (‘June 2011 Rule’)–which requires larger, more prominent health warnings on all cigarette packaging and advertisements in the United States and was scheduled to become effective in September 2012–is uncertain.”

It added, “Because of uncertainties caused by ongoing litigation, those who manufacture, package, sell, offer to sell, distribute or import for sale or distribution cigarettes within the United States will not be expected to comply with Section 903(a)(2) of the Federal Food Drug & Cosmetic Act with respect to cigarette packaging and labels until further notice from FDA.”

And it reserved the right to implement the rule at a later date. “FDA will not be soliciting or reviewing cigarette warning plans. In the future, FDA may notify the public that it is requesting and accepting the submission of cigarette warning plans in advance of the effective implementation date.”

Click here to view the full letter.

SOURCE: CSP Daily News

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