A federal judge has suspended a government plan to require tobacco companies to display graphic anti-smoking warning labels on their cigarette packs by next fall, citing a violation of the First Amendment.
The U.S. Food and Drug Administration (FDA) approved the labels in question in June – a series of nine different images with text warnings that convey messages about the health risks of smoking and tobacco use. But U.S. District Judge Richard Leon ruled on Monday that the labels do far more than merely provide information; rather, they make no secret of their anti-smoking bias: one zooms in on autopsy staples in a dead man’s chest; another features a man blowing smoke through his tracheotomy hole. In taking a stand, Leon ruled, the labels — which would have represented the first change to tobacco warnings in 25 years — inappropriately advocate for consumers to quit smoking or never start in the first place.
The labels, which were slated to cover the top half of cigarette packs sold in the U.S. include text such as, “Warning: Cigarettes causes fatal lung disease in nonsmokers” and “Warning: Smoking can kill you.”
The images’ visceral ability to “provoke emotion” indicates that “the government’s actual purpose is not to inform, but rather to advocate a change in consumer behavior,” ruled Leon in his 29-page opinion. He said that the images were in violation of a First Amendment principle that prevents the government from compelling speech in the commercial arena. As a result, he ruled to suspend the FDA’s requirement until the lawsuit is resolved, which could take several years.
The Judge’s language echoes the argument made by five tobacco companies, who filed a lawsuit against the FDA in August. Monday’s decision “reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products,” said Floyd Abrams, an attorney for Lorillard, which joined R.J. Reynolds, Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Co. Inc. in protesting the labels.
For their part, the FDA and health officials point to a need for change from the current labeling, which includes a small, easily-ignored and non-specific statement from the U.S. Surgeon General. Smoking is the top cause of preventable death in the U.S., despite a long period of decline. For the last five years, smoking rates in the U.S. have plateaued at about 21% of the adult population; one of every five high school students smokes. About 1,000 children and teenagers join the ranks of smokers every day, with 4,000 trying smoking for the first time.
At least 43 countries require prominent and graphic warning labels on tobacco products, and Matthew Myers, president of the Campaign for Tobacco-Free Kids, thinks they work. “Studies around the world and evidence presented to the FDA have repeatedly shown that large, graphic warnings, like those adopted by the FDA, are most effective at informing consumers about the health risks of smoking, discouraging children and other nonsmokers from starting to smoke, and motivating smokers to quit,” said Myers, who is hopeful the U.S. Justice Department will appeal the ruling, in a statement.