A few months ago we had an editorial piece commenting on the FDA’s attempt to use offensive images on tobacco products to dissuade potential consumers from purchasing the product. Well some time has passed and this controversial measure has unsurprisingly met some resistance. One such instance is the following one as reported in the latest IPCPR newsletter:
U.S. District Judge Richard Leon said today that the labels violate free-speech rights under the First Amendment. The labels were slated to debut Sept. 22.
R.J. Reynolds Tobacco Co. and Lorillard Inc. were among five tobacco manufacturers that filed a lawsuit against the FDA in August challenging the constitutionality of the mandated labels, which would cover the top 20 percent of advertisements.
The opinion follows a Nov. 7 opinion by Leon in which he granted the manufacturers’ request for a preliminary injunction in a strongly worded rebuttal of the FDA’s initiative.
The FDA has claimed the labels are the most significant change to cigarette packaging in 25 years. The nine labels – including images of a cadaver with a sewn-up chest, diseased lungs and gums, and cigarette smoke drifting around an infant – were chosen by the FDA in June 2011.
“As a matter of general policy, the FDA does not comment on possible, pending or ongoing litigation,” spokeswoman Michelle Bolek said.
Leon wrote in November “it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking – an objective wholly apart from disseminating purely factual and uncontroversial information.”
In Wednesday’s 19-page opinion, Leon wrote “the government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule if narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech.”
Reynolds said it was pleased with Leon’s ruling on its First Amendment merits.
“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,” says Martin Holton III, executive vice president and general counsel for Reynolds.
“However, the goal of informing the public about the risks of tobacco use can and should be accomplished consistent with the U.S. Constitution. While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear.”
Leon said the FDA has chosen not to use several alternatives offered by the manufacturers “that are easily less restrictive and burdensome for plaintiffs, yet would still allow the government to educate the public on the health risks of smoking without unconstitutionally compelling speech.”
Those include: the FDA increasing its own anti-smoking advertisements beyond the $600 million already committed to a multimedia campaign; the FDA reducing the label to 20 percent of the packaging and requiring warnings on either the front or back of the packaging; and selecting graphics “that conveyed only purely factual and uncontroversial information rather than gruesome images designed to disgust the consumer.”
There was considerable debate among advocates and health officials, as well as local smokers, about whether the labels would be effective.
For example, an FDA study released in October 2010 found that although the labels may stir the emotions of smokers, they might not cause smokers to quit.
Leon said in November the labels would treat “every single pack of cigarettes in our country as a mini-billboard” for the FDA’s “obvious anti-smoking agenda.”
Also joining the lawsuit were Reynolds American Inc. subsidiary Santa Fe Natural Tobacco Co. Inc., Commonwealth Brands Inc. and Liggett Group LLC.