- Lorillard attorney: The government "may not ...require others to mouth its position"
- A Cancer Society official says the ruling is "bad for public health"
- The Family Smoking Prevention and Tobacco Control Act was passed in 2009
- It would have required graphic images and words on tobacco products warning of dangers
A federal mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking was tossed out Wednesday by a judge in Washington, with the judge saying the requirements were a violation of free speech.
"Unfortunately, because Congress did not consider the First Amendment implications of this legislation, it did not concern itself with how the regulations could be narrowly tailored to avoid unintentionally compelling commercial speech," said federal Judge Richard Leon in his 19-page ruling.
The Family Smoking Prevention and Tobacco Control Act passed in 2009 would have required nine written warnings such as "Cigarettes are addictive" and "Tobacco smoke causes harm to children." Also included would have been alternating images of a corpse and smoke-infected lungs.
A group of tobacco companies led by R.J. Reynolds and Lorillard had sued, saying the warnings would be cost-prohibitive, and would dominate and damage the packaging and promotion of their particular brands. The legal question was whether the new labeling was purely factual and accurate in nature or was designed to discourage use of the products.
"The graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks" said Leon. "Rather they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking."
Other color images required under the Food and Drug Administration rules would have been: a man smoking through a tracheotomy hole in his throat, smoke wafting from a child being kissed by her mother, a diseased mouth presumably from oral cancer linked to chewing tobacco and a woman weeping uncontrollably.
There was no immediate reaction to the ruling from the FDA, and the Justice Department, which defended the law in court, said it had no comment.
But the president of the American Cancer Society Cancer Action Network declared the ruling "bad for public health."
"Today's ruling ignores the overwhelming, decades-long need for strong cigarette warning labels and allows Big Tobacco to proceed 'business as usual,' continuing to promote its highly addictive and deadly products," Christopher W. Hansen said in a statement from the Cancer Action Network.
Richard Daynard, a lawyer and critic of smoking who leads the Tobacco Products Liability Project in Boston, rejected Leon's argument.
"First of all, Congress did consider it," he said in a telephone interview. "They have elaborate findings of fact as part of the preamble to the statute that directly address why it is a now-compelling state interest, a public interest, to restrict the advertising of cigarettes. So the notion that Congress missed this one is just simply false."
He said the ruling "shows a complete lack of sensitivity to the public health dimensions of the smoking epidemic, for the fact that it's been elaborately demonstrated over and over again that tobacco marketing encourages kids to start smoking."
The way to counter that, he said, is with the kind of strong images that Leon ruled against. "Negative advertising works," Daynard said. "Everybody knows that."
Lorillard attorney Floyd Abrams applauded the legal opinion. "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," said Abrams, a prominent First Amendment scholar.
The word and image warning labels would have covered half of the cigarette packs sold at retail outlets, and 20% of cigarette advertising.
The federal law in question would also regulate the amount of nicotine and other substances in tobacco, and limit promotion of the products and related promotional merchandise at public events like sporting contests. The free speech aspect was the only issue in the current case.
Several other lawsuits over the labels are pending in federal court, part a two-decade federal and state effort to force tobacco companies to limit their advertising, and settle billions of dollars in state and private class-action claims over the health dangers of smoking.
The case is R.J. Reynolds v. U.S. Food and Drug Administration (cv-11-14820).