The U.S. Justice Department is hopeful a federal appeals court in Washington will strike down the injunction blocking the enforcement of new rules requiring cigarette packages to carry graphic warning labels.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the dispute today, examining the line between government anti-smoking advocacy and factual health warnings for consumers.
The proposed labels depict images of the real-life harms of smoking. U.S. District Judge Richard Leon in Washington found the FDA rules infringed the First Amendment rights of tobacco companies.
Last month, a federal appeals court in Cincinnati upheld the graphic warning labels, setting up the potential for a split among circuit courts. The D.C. Circuit did not immediately rule this morning.
DOJ attorney Mark Stern, arguing today for the U.S. Food and Drug Administration, said the images are narrowly tailored to inform consumers about the dangers of smoking. He called the images accurate.
“This didn’t come out of the blue,” Stern said, noting that other countries have adopted similar regulations.
Judge Janice Rogers Brown, who heard the case with Judge Judith Rogers and Senior Judge A. Raymond Randolph, said that “America is the only one that has a First Amendment to worry about.”
Brown continued: “I don’t really understand where this stops. It seems to me that there is nothing that the government can’t compel the seller of a disfavored product to put on their product if they think it’s for the public good.”
Brown seemed concerned that the government could compel other products to carry images. She said the government is essentially telling smokers “don’t buy this product.”
Stern also argued today that smokers do not fully understand tobacco’s harmful effect on health. The images, he argued, communicate the risk of smoking more effectively than do text warnings.
Consumers might not understand the dangers of many things, Randolph said. The dangers of chainsaws, or climbing ladders. “People are not omniscient,” he said. “People don’t know everything.”
Jones Day litigation partner Noel Francisco, representing R.J. Reynolds Tobacco Co. in the dispute, said the labels cross the line from fact-based to issue advocacy. The government is triggering a negative emotional reaction.
The government, Francisco said, can trumpet an anti-smoking message all it wants. He argued the government cannot force tobacco companies to carry the message.
“You don’t have to be Sherlock Holmes to find out what’s going on here,” Francisco said in court. “The government is trying to send a ‘powerful’ message: quit smoking now.”
Government studies, Francisco argued, show that graphic images do not change consumer smoking habits. “If it has no effect, why are you objecting?” Judge Judith Rogers asked him.
“We’re objecting because it’s requiring us to put on our packaging the message that consumers shouldn’t buy our package,” Francisco replied. “We don’t want to send that message.”
Francisco also said the graphic labels takes away one of the few remaining areas tobacco companies have to market their products. The images would be placed on the top half of cigarette packs--typically the only visible marketing at any store given the placement of tobacco products on shelves.
“The whole purpose of these warnings is to make sure that the only thing you see is the government's message,” he said.