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Federal Judge Blocks Cigarette Warning Labels

A Federal Judge has ruled that the new, graphic, cigarette warning labels mandated by the Federal Government are unconstitutional because they compel manufacturers to engage in advocacy speech mandated by the Federal Government:

A federal judge blocked the federal government Monday from requiring tobacco companies to begin putting graphic new warning labels on cigarette packages, cartons and advertisements beginning next year.

In a 29-page decision, U.S. District Judge Richard J. Leon granted a request from five tobacco companies to issue a preliminary injunction barring implementation of the Food and Drug Administration’s new mandate.

“The Court concludes that plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech, and that they will suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA’s rule,” Leon wrote.

The tobacco companies hailed the decision.

“We are pleased with the judge’s ruling and look forward to the court’s final resolution of this case,” said Bryan D. Hatchell, a spokesman for R.J. Reynolds Tobacco.

The judge’s decision puts on hold a plan unveiled in June by the FDA designed to shock customers with nine graphic images of tobacco’s impact, including smokers exhaling through a tracheotomy hole, struggling for breath in an oxygen mask and lying dead on a table with a long chest scar.Cigarette cartons, packs and advertising would have been required to feature these and six other graphic warnings, replacing the discreet admonitions that cigarette manufacturers have been required to offer since 1966. The startling images would have dominated half of the front and back of each carton and pack and 20 percent of each large ad.

(…)

The color images also would include a diseased lung, a mouth with mottled teeth and a disfigured lip, a weeping woman and a cartoon of a crying baby in an incubator along with messages such as “Warning: Cigarettes are addictive,” “Warning: Cigarettes cause cancer” and “Warning: Smoking can kill you.”

Each brand would have rotated all the images randomly throughout the year. Every warning would also have to include “1-800-QUIT-NOW,” a hotline smokers could call for help kicking the habit.

This strikes me as a sensible decision, and I say that as someone who’s never smoked a cigarette in my life. The idea that a business should be forced to host graphic government propaganda on its packaging strikes me as completely nonsensical, and really points out the continued government hypocrisy when it comes to issues like this. The government has been telling us that smoking is bad for you for nearly 50 years now, while at the same time providing financial assistance to tobacco farmers and profiting off the taxes charged on cigarettes and cigars. At the same time they want to put these warnings on cigarette packaging, it’s fairly obvious that neither the Federal Government nor the states have any intention of  acting to ban tobacco because they make far too much money off those taxes (not to mention that we already know that prohibition never works). You can’t really have it both ways, and when you get right down to it, it really isn’t the government’s business to be telling people how to live their lives.

If you aren’t smoking now, don’t start. If you are smoking, stop. That’s my advice. But if people want to continue buying and using a lawful product, that’s their right, and they don’t need to be subjected to endless government propaganda in the process of doing so. We are, I think, at the point in our society where people know that cigarette smoking is an unhealthy habit, but it is their right to continue taking that risk, isn’t it?

Here’s the court’s decision:

R.J. Reynolds et al v. US FDA et al

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Rob in CT says:

    I’m reminded of Dennis Leary’s bit in No Cure for Cancer. From memory:

    “You could put a skull and crossbones on the pack and call ‘em TUMORS and you’d have people lined up around the block to buy ‘em!”

    I’m ambivalent about governmental scare tactics wrt smoking. On the one hand, the health effects are really bad so the “propoganda” is correct. On the other, at this point if you don’t know smoking is bad for you, well… gosh. You’re an idiot.

    Like or Dislike: Thumb up 2 Thumb down 0

  2. PD Shaw says:

    I don’t have a fixed view on this issue, but it does seem that a distinction is being drawn between written and graphic messages that I think is uneasy to make. The state can compel manufacturers of dangerous substances to “write” warnings, but not “show” warnings?

    Like or Dislike: Thumb up 5 Thumb down 0

  3. lordastral says:

    @PD Shaw:

    I think the difference here is that the written warning can be considered the same as requiring food manufacturers telling people “this was made in a facility that also processes peanuts” or whatever.

    Requiring cigarette manufacturers to declare the hazards inherent in their products is one thing, but demanding they – at their expense – print and distribute government propaganda is another thing entirely. Tobacco is obviously a controversial product, so lets take another product.

    Bicycles. What if the government decided that every bicycle made had to include the warning, “Riding a bicycle without a helmet is dangerous.”

    People might be okay with that, it seems a sensible warning. How about forcing the bicycle to have an add that covers 20%-25% of its surface with pictures showing dead people who died because they didn’t have a helmet on.

    How about alcohol. Should beer companies be required to show the graphic results of a DUI auto crash, dead bodies splayed across the pavement? How about the autopsy results of someone who died as a result of alcohol poisoning?

    What about Cars. Should the government be allowed to require all cars to cover 20% of their visible surface with graphic examples of global warming?

    How about Bibles/Korans/Any religious text? Should the governement force bible manufacturers to cover 20% of their surface warning about religious extremism? Perhaps pictures of dead abortion doctors and the world trade center blowing up?

    The problem with cases like these is that one the surface they only apply to a single product or a single company. However, once those rulings are made, they then start to be applied to every product, every company. Yes I realize that the example about the bible is an obvious hyperbole, but how much of a companies product packaging should be controlled by the government?

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  4. jan says:

    @Rob in CT:

    I’m ambivalent about governmental scare tactics wrt smoking.

    I am too. On it’s merits this was probably a correct ruling.

    However, I know that visual aids, like graphic pictures of deterioriating health do have a more emotional impact over putting warning words on a box. For instance, that one ad, where a woman is smoking through a hole in her neck is unforgettable, IMO. If I ever had the urge to smoke (which I never did), that one ad would do it for me, to never pick up a cigarette.

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  5. Tsar Nicholas says:

    Good ruling. Hopefully the next president will nominate Judge Leon for the 1st Circuit COA. Alas, unfortunately, I don’t think he’ll be on Obama’s short list for that promotion.

    Like or Dislike: Thumb up 0 Thumb down 1

  6. Liberty60 says:

    I agree with Doug’s point, and the larger issue as well; its fair to add a neutrally worded warning, but at some point the language develops into advocacy.

    The underlying cause of this seems in my opinion to be that as with pornography and strip clubs, the government is resorting to increasingly draconian measures to restrict what it can’t ban outright.

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  7. A voice from another precinct says:

    @jan: I suspect that everyone in America has seen that commercial at least once, and yet, people still smoke. Hmmmm…must be something else going on here (and no, I’m not talking about the tobacco/addiction conspiracy link).

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  8. Kit says:

    What a disappointingly superficial handling of a subject that any adult should recognize as having more aspects than are alluded to here. Governmental hypocrisy? What does that even mean in a system that has so many moving parts? Different levels of government, different agencies, a mishmash of laws, conflicting interests, changing mores. This is not hypocrisy but mere inconsistency and only to be expected in a democracy. And is it even inconsistent for the government to claim that cigarettes are harmful, to tax them in order to reduce demand and then *gasp* to spend the money? Hypocrisy? The word that comes to my mind is obtuse.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. Nightrider says:

    @ Doug: Are you so sure that the government actually profits from tobacco, once Medicare, lost productivity, etc are factored in?

    As for all of the “where do you draw the line” comments, that is what legislatures are for. I don’t think the majority of Americans want to make everyone put pictures on our cars about global warming. But we do like to require cars to have taillights. Funny, I don’t see all the whining about activist judges subverting the will of the people.

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  10. Mike says:

    I disagree with two aspects of the argument brought up by the writer: 1) the government should not be promoting its public health agenda and 2) that the government ironically profits from the tobacco/smoking industry.

    1) I think it is important for the government to promote a healthy lifestyle for its citizens. Americans have too much stuff going on in their daily lives to educate themselves and monitor the minutia of their diet/exercise regimen. In this case, it is pretty obvious now that smoking is bad for you… but it may not be as obvious in the case of diet, which can have its own negative health effects. Seeing as how ~1/3 of all health care costs come from preventable diseases (the cost of which is spread across the entire population via taxes and insurance premiums), it is important that the government a) aid those who are making poor decisions and b) look out for those who are making good decisions in a health-care system which monetarily intertwines those who live responsibly and those who do not.

    2) Our health-care system also leads me to my second point. I don’t think it’s fair to say that the government “profits” from the tobacco/smoking industry. The income gained from taxation more than likely does not outweigh the cost incurred from paying for medical benefits (heart surgery, chemotherapy, etc.) to long-time smokers. If anything, the government taxation dissuades people from participating in unhealthy behavior while proactively collecting money for health-care treatment down the road.

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