Cigarette Companies Claim Graphic Labels Violate First Amendment

Five of the nation's largest cigarette manufacturers filed suit (PDF) Tuesday against the U.S. Food and Drug Administration challenging new regulations that require them to print graphic images depicting the health risks of smoking on cigarette packaging and advertisements.

First Amendment veteran Floyd Abrams of Cahill, Gordon & Reindel is representing the tobacco companies, which include R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company Inc.

"It violates the First Amendment to require the manufacturer of a lawful product to be required to use half of its package essentially to urge people not to buy the product," Abrams said in a phone interview this morning. "The issue is whether the government can do that and we think that the First Amendment bars anything like that sort of compelled speech."

A spokeswoman for the Food and Drug Administration said the agency does not comment on pending litigation.

In the complaint, filed in U.S. District Court for the District of Columbia, the companies note that they've never brought a legal challenge before against regulations requiring written warnings to be printed on cigarette packages and ads.

The difference between the traditional warnings and the new ones, they argue, is that the former represent "uncontroversial factual information," while the latter "cross the line into governmental anti-smoking advocacy."

Under the Family Smoking Prevention and Tobacco Control Act of 2009, the FDA created nine new written warnings that list a phone number for a quitting hotline and are accompanied by color pictures, including a side-by-side comparison of diseased and non-diseased lungs, a man with a hole in his throat and a body on an autopsy table.

The new regulations will go into effect in September 2012. In unveiling the new warnings in June, the agency said that the new warnings were needed to encourage adults to quit smoking and prevent children from starting. "These labels are frank, honest and powerful depictions of the health risks of smoking," Health and Human Services Secretary Kathleen Sebelius said in the statement.

The plaintiffs' legal team also includes attorneys from Jones Day, Latham & Watkins, Covington & Burling and O'Melveny & Myers. The case has been assigned to U.S. District Judge Richard Leon.

Comments

[Ric McCoy]

The new graphics will not make a difference for the addiction to cigarettes is a very powerful tool and the warning labels have not made a difference in the past.

[Reasons To quit Smoking]

I hate to say this but i also agree with the cigarette companies.

[Peter S. Chamberlain]

The bottom line Constitutional question could come down to whether or not, under the Commerce Clause, etc., the federal government could validly outlaw cigarettes, the politics of that aside. If, as I suspect, then could, then the lesser measure of requiring graphic warnings ceases to be a real First Amendment and becomes a straightforward Commerce Clause business regulation case.
This is the tobacco industry, which used to advertise "not a cough in a carload" and fraudulently concealed the known adverse health effects of its lethal or lethally dangerous product, and their rigging it to enhance physical or psychological addiction, from Congress and the Courts, b affirmative lies and concealment, for years. somebody should check out their role in the manipulation of the law of, inter alia, scientific and expert evidence, too.
If any warning can Constitutionally be required, the "compelled speech" issue drops out and the fact that it must be "graphic" or effective, hardly changes the Constitutional analysis. A requirement that they include the fact that they lied to Congress, the courts, and consumers about the dangers of their products might be Constitutionally and otherwise justified, too.

[chirs]

These are the same companies who supply cigarette's to Canada? The same companies who have the same type of warning label's that is going in effect?

**search google images for it. Canada cigarette warnings.

[NavinC Naidu]

So, its ok to post graphic pictures of an aircrash in airports to prevent people from flying so as to save fuel since we are becoming fuelish !!

[Dirk A. Ravenholt]

I believe that the cigarette company has a point that the government cannot compell a company to advertise adverse information on products. What's next - cars with the hood covered with graphic pictures of car accidents indicating that you should take a bus instead of your car?
Dirk A. Ravenholt, Esq.

[TonySF]

Meh. They do this in Europe and people still chain smoke. It's disingenuous to say that anti-smoking advocacy will lead to fewer people smoking. Cigarettes are highly addictive and people are going to continue their smoking habits whether or not there is a back lung on the packaging.

[D]

If cigarettes need graphic warning labels, so does everything ... http://placeitonluckydan.com/2011/08/cigarette-warning-labels-for-all/