In a victory for the tobacco industry, the U.S. Food and Drug Administration (FDA) and the Justice Department have decided to bow out of an ongoing legal battle with several of America’s biggest cigarette manufacturers over proposed regulations requiring all of their products to be conspicuously branded with graphic imagery and warnings about their adverse health consequences.
Mandating the labels — which include visceral depictions of tobacco’s carcinogenic effect on the lungs, throat, and mouth — was made possible under the auspices of the Family Smoking Prevention and Tobacco Control Act of 2009. That landmark legislation put tobacco regulation under the FDA’s purview for the first time in American history and instructed the body to develop new cigarette labels with color graphics, prompting the FDA to propose the nine graphic warnings that have drawn tobacco distributors’ ire.
But a federal appellate court affirmed a lower court’s decision to strike down the proposed rule in March, claiming that its “graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard” of 1st Amendment protections against compelled commercial speech — an argument heartily endorsed by the tobacco lobby:
Some of the nation’s largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings on cigarette packs as part of the 2009 Family Smoking Prevention and Tobacco Control Act that, for the first time, gave the federal government authority to regulate tobacco. The nine labels originally set to appear on store shelves last year would’ve represented the biggest change in cigarette packs in the U.S. in 25 years.
Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers — one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV. They had argued that the proposed warnings went beyond factual information into anti-smoking advocacy.
The government, however, argued the images were factual in conveying the dangers of tobacco, which is responsible for about 443,000 deaths in the U.S. a year.
The legal argument against the labeling requirements is certainly not implausible — in fact, that’s likely the reason that the federal government chose not to appeal to the Supreme Court. But it’s a standard of free speech that federal judges apply asymmetrically, as they don’t give doctors who provide abortions the same protections against government-compelled speech as they grant to the multibillion dollar tobacco industry.
Brand labeling has become Big Tobacco’s signature avenue for advertising to its consumer base, since federal law has prohibited television advertisements for tobacco since the 1970s, and additional restrictions were included in the more recent legislation signed by President Obama. Consequently, the FDA’s new labels could have been an effective method of giving consumers information about tobacco’s negative health effects — especially considering that studies have shown that pictures speak louder than words in anti-smoking campaigns.
While American smoking rates have plunged in the last several decades, low-income Americans — particularly women — who are particularly unable to afford the massive health care costs of smoking-related illness still use tobacco in high numbers. Until the FDA comes up with a labeling rule that can withstand judicial scrutiny, public health and anti-smoking advocates may have to rely on more parochial efforts, such as New York City Mayor Michael Bloomberg’s (I) new initiative to crack down on public cigarette displays.