LOUISVILLE, Ky. — A federal law requiring cigarette packages to carry graphic warnings about the dangers of smoking and restricts how tobacco products may be marketed and advertised passes constitutional muster, a federal appeals court ruled Monday.
The case is one of two by tobacco companies against the federal rules that would make them slap large images on cigarette packs depicting the health ravages of smoking. The other case has so far resulted in a federal judge in Washington blocking the new requirement, arguing last month it violated free speech. That decision is being appealed by the government.
In this case, originally filed in Kentucky, a three-judge panel from the U.S. 6th Circuit in Cincinnati ruled that the government has an interest in preventing consumers from being deceived by the marketing practices of tobacco companies and the Family Smoking Prevention and Tobacco Control Act’s requirements are aimed at that goal.
Judge Jane Branstetter Stranch emphasized past practices by tobacco companies to deceive consumers about the hazards of tobacco products and said the new requirements provide “truthful information” to consumers as they make decisions about using tobacco.
“It bears emphasizing that the risks here include the undisputed fact that Plaintiffs’ products literally kill users and, often, members of the families of users,” Stranch wrote. “Tobacco products will kill up to one-half of the people who use them as they are intended to be used.”
The law, which took effect in June 2009, lets the FDA limit, but not ban, nicotine. It also lets the agency ban candy flavorings and marketing claims such as “low tar” and “light,” require warning labels — including up-close photos of a smoker’s rotting teeth, a man exhaling smoke from a tracheotomy hole in his neck and the damaged heart muscle of a smoker — be emblazoned over carton images. It would also regulate what goes into tobacco products and publicize those ingredients.
Tobacco companies in 2009 sued in Bowling Green, challenging marketing restrictions that mandate tobacco companies reserve 50 percent of the front and back of cigarette packaging, 30 percent of the front and back of smokeless tobacco packaging and 20 percent of tobacco advertising for full-color graphic health warnings issued by the Food and Drug Administration.
The appeals court decision upholds most of a ruling by U.S. District Judge Joseph H. McKinley in 2010, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product.
The tobacco companies argued that the law infringed on their free speech rights. The government argued that the law was in the public interest
Floyd Abrams, an attorney for Lorillard Tobacco, said the decision applies more broadly as to whether the FDA has the right to impose certain marketing regulations on the tobacco industry, but does not specifically address the content of those requirements. For example, the appeals court ruled the FDA could force tobacco companies to put new graphic warning labels on cigarette packs, but does not rule on the specific images proposed by the FDA that another federal judge deemed unconstitutional in late February.
“Taken as a whole, I think the decision seems to reflect a reluctance to give sufficient weight to First Amendment concerns,” Abrams said.
Ultimately, Abrams said he believes the issue will be heard by the U.S. Supreme Court.
Susan M. Liss, executive director for The Campaign for Tobacco-Free Kids, said the ruling is “a critical step” in allowing the Food and Drug Administration to implement its authority over tobacco products.
“This ruling is a clear victory for public health,” Liss said.
Stranch wrote that the graphic warnings can convey factual information, not just opinions, just like textual warning labels on packages.
“People with the same illness can and often will suffer a variety of differing symptoms,” Stranch wrote. “But one wouldn’t say that a list of symptoms characterizing a particular medical condition is nonfactual and opinion-based as a result. So too with graphic images.”
Stranch found that the text warnings required since 1984 require “a college reading level” to understand and are probably not appropriate for youths and people with lower reading levels and weren’t reaching much of the intended audience. The law requiring the graphic warnings corrects that problem, Stranch wrote.
“A warning that is not noticed, read, or understood by consumers does not serve its function,” Stranch wrote. “The new warnings rationally address these problems by being larger and including graphics.”
Judge Eric Clay dissented from the graphic label requirement, saying that despite government arguments, the warnings are not similar to the extensive labels placed on over-the-counter drugs. Those labels provide factual information about the drug and possible side effects, Clay wrote. The large color graphics required on cigarette packages “is clearly unprecedented,” Clay wrote.
“It appears, from the government’s own evidence, that the color graphic warning labels are intended to create a visceral reaction in the consumer, in order to make a consumer less emotionally likely to use or purchase a tobacco product,” Clay wrote.