A federal appeals court on Friday upheld a decision barring the federal government from requiring tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.
In a 2-1 decision, the U.S. Court of Appeals in Washington affirmed a lower court ruling that the requirement ran afoul of the First Amendment’s free speech protections. The appeals court tossed out the requirement and told the Food and Drug Administration to go back to the drawing board.
Some of the nation’s largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to show the dangers of smoking and encouraging smokers to quit lighting up. They argued that the proposed warnings went beyond factual information into anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual in conveying the dangers of tobacco, which is responsible for about 443,000 deaths in the U.S. a year.
The nine graphic warnings proposed by the FDA include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother’s kiss. These are accompanied by language that says 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, 1-800-QUIT-NOW.
In the majority opinion, the appeals court wrote that the 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.”
The court also wrote that the FDA “has not provided a shred of evidence” showing that the warnings will “directly advance” its interest in reducing the number of Americans who smoke.
Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers — one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.
“It’s a significant vindication of First Amendment principles,” said Floyd Abrams, an attorney representing Lorillard Tobacco. “There’s never been any doubt that the government could require warnings on products that can have dangerous results. And what the court is saying is that there are real limits on the ability of the government to require the manufacturer of a lawful product to denounce the product in the course of trying to sell it.”
The FDA declined to comment on pending litigation and the Justice Department said it would review the appeals court ruling. Public health groups are urging the government to appeal.