A divided federal appeals court today struck down as unconstitutional proposed graphic warning labels that government officials wanted to slap on cigarette packs to deter smoking.
The U.S. Court of Appeals for the D.C. Circuit voted 2-1 against the U.S. Food and Drug Administration graphic labels that tobacco companies assailed and public health groups heralded. R.J. Reynolds Tobacco Co. and other companies sued the government in Washington's federal trial court to block enforcement of the FDA label rules.
"These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers," Judge Janice Rogers Brown wrote for the majority. "They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting."
Brown also wrote: "FDA failed to present any data—much less the substantial evidence required under the (Administrative Procedure Act)—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates."
The tobacco companies' lawyers, including Jones Day partner Noel Francisco for R.J. Reynolds, did not contest the authority of Congress to require warnings on cigarette packs about the dangers of smoking. The companies disputed the proposed requirement that all packs carry graphic images depicting potential harmful effects of tobacco use.
Francisco, who argued in the appeals court in April, was not immediately reached for comment this morning. A Justice Department spokesman said the D.C. Circuit decision is under review.
Brown wrote that "no one doubts the government can promote smoking cessation programs; can use shock, shame, and moral opprobrium to discourage people from becoming smokers; and can use its taxing and regulatory authority to make smoking economically prohibitive and socially onerous."
The graphic warning label case, Brown wrote, "raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest."
Brown, who was joined by Senior Judge A. Raymond Randolph, said many of the images don't offer information about the health effects of smoking. None of the images, the judge said, are "patently false." But, Brown said, "they certainly do not impart purely factual, accurate, or uncontroversial information to consumers."
Writing in dissent, Judge Judith Rogers said the trial judge, Richard Leon, who granted summary judgment in favor of the tobacco companies, disregarded cigarette manufacturers' deceptive advertising practices.
"[I]t is also beyond dispute that the tobacco companies have engaged in a decades-long campaign to deceive consumers about these facts," Rogers wrote.
The graphic warning labels, Rogers said, "present factually accurate information and address misleading commercial speech."