Court Rules FDA Can't Shame Smokers With Gross Cigarette Labels

By Margaret Hartmann | November 8, 2011 | 5:00pm

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The government has already jacked up taxes on cigarettes and forced smokers into the cold, but yesterday it lost a battle in its ongoing effort to scare and annoy smokers into quitting rather than just banning cigarettes. The FDA’s plan to cover half of every cigarette label with disgusting images of rotten teeth and cadavers was derailed when a judge found that forcing tobacco companies to use the labels violates their first amendment rights.

The L.A. Times reports that U.S. District Judge Richard Leon has granted five tobacco companies a preliminary injunction because there’s a “substantial likelihood” that they’ll win their case against the FDA, “on the merits of their position that these mandatory graphic images unconstitutionally compel speech.” The FDA planned to require labels on all cigarette packaging as of September 2012, but now the case could be in court for months or even years.

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At issue is whether or not the images contain factual statements. Judge Leon says that they don’t just present contain, “purely factual and uncontroversial information,” but are a form of advocacy. It’s possible that the courts will find that some of the nine images are acceptable, such as the photo of diseased lungs with the warning, “Cigarettes cause fatal lung disease.” Others, like the message “Quitting smoking now greatly reduces serious risks to your health,” along with a man proudly displaying his “I Quit,” shirt are less likely to make it onto packaging. James Wheaton, a First Amendment expert who teaches at UC Berkeley, says:

“You can’t force a company to carry the government’s opinion on an issue … These images are clearly not limited to a statement of fact. They’re designed to evoke an emotional response.”

Tobacco companies may be despicable, but if the government won’t ban cigarettes altogether it still has to grant the companies certain rights.

There’s also the question of whether or not the labels will do anything. Other countries already feature similar ads on packaging and smokers have learned to ignore them. The government has thoroughly informed people of the dangers of smoking, and now it’s up to the individual to make a choice. If the government won’t fully shut down the tobacco industry because there’s too much money involved, there’s a limit to how much it can shame smokers for using a legal product.

Unfortunately, the government’s hypocrisy doesn’t end there. In an infuriating article the New York Times reports that government officials and anti-smoking groups are still trying to get e-cigarettes banned. A recent Italian study found that after supplying 40 hard-core smokers with electronic cigarettes, which give people a puff of nicotine vapor without the other toxic substances in cigarettes, more than half drastically reduced their cigarette intake or stopped smoking altogether. Yet many people oppose the use of e-cigarettes because they prefer an “abstinence only” policy on quitting smoking. Last year the FDA’s attempt to ban the sale of e-cigarettes was blocked, so it’s been publicizing the fact that they contain dangerous chemicals and saying they could turn non-smokers into nicotine addicts. In reality, they’re about as dangerous as nicotine gum and patches, and unless there’s some bizarre fad we haven’t heard of, kids aren’t passing up cigarettes in favor of Nicorette gum.

William T. Godshall, executive director of Smokefree Pennsylvania, says that if nicotine products were ranked on a scale of one to 100, cigarettes would be 100, nicotine gum would be a one and e-cigarettes would be a two or less. He predicts, “E-cigarettes could replace much or most of cigarette consumption in the U.S. in the next decade.” That could make millions of people much healthier, but it will never happen if the government continues to focus on paternalistic strategies that send the message that smokers are bad people who must quit the way the government wants them to.

FDA Is Blocked From Requiring Graphic Warnings On Cigarette Labels [LAT]
A Tool to Quit Smoking Has Some Unlikely Critics [NYT]

Earlier: See The Grisly Warning Labels Coming To Cigarette Packs