New Graphic Warning Labels on Cigarettes Pass Another Hurdle

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A federal appeals court ruled on Monday that the government’s requirement that tobacco companies put graphic warning labels on cigarette packs was constitutional and did not violate the companies’ freedom of speech.

The decision came in one of two cases brought by tobacco companies against the federal law that would force them to cover 50% of the front and back of each cigarette pack with a graphic warning label, including gruesome images of a smoker’s rotting teeth or a man exhaling smoke through a tracheotomy. The law, which took effect in 2009, for the first time granted the Food and Drug Administration authority to regulate tobacco and tobacco marketing. In addition to requiring graphic warning labels, it also allows the FDA to ban flavored cigarettes and marketing claims like “low tar” and “light” and prevent tobacco companies from sponsoring social events and giving away free samples or using branded merchandise.

Tobacco companies are contesting the labeling requirement of the law on the grounds that it treads on their freedom of speech. Last month, in the other case, a federal judge in Washington, D.C., sided with the companies and blocked the labels, ruling that they do violate free speech and are therefore unconstitutional. The government is appealing the decision.

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In this case, a three-judge federal appeals panel in Cincinnati ruled that the government has a legitimate interest in protecting consumers from tobacco companies’ deceptive marketing practices and ensuring that they are truthfully informed about the health hazards of smoking. Describing the panel’s decision to uphold the legality of graphic warning labels, Judge Jane Branstetter Stranch wrote:

It bears emphasizing that the risks here include the undisputed fact that Plaintiffs’ products literally kill users and, often, members of the families of users. Tobacco products will kill up to one-half of the people who use them as they are intended to be used.

The 2009 Family Smoking Prevention and Tobacco Control Act mandated the FDA to require graphic warning labels. Text-only warning labels first appeared on cigarettes in 1965, mandated by the Cigarette Labeling and Advertising Act a year after the Surgeon General issued the first report documenting the health hazards of smoking.

The problem that tobacco companies have with the new graphic labels is that the grisly images the government wants to use are designed to evoke an emotional response and get people to quit or never start smoking — an argument with which the federal judge in D.C. agreed last month. The images go beyond mere information, according to cigarette manufacturers; rather, they convey the government’s anti-smoking agenda, which tobacco companies should not be forced to advertise on their products.

Judge Stranch wrote, however, that graphic warnings can also communicate straightforward factual information, just like textual warnings. Further, Stranch noted, graphic warning labels can reach a wider audience — including youths and those who don’t have high enough reading levels to understand the text warnings — and can therefore be more effective than text-only labels. “A warning that is not noticed, read, or understood by consumers does not serve its function,” she wrote. “The new warnings rationally address these problems by being larger and including graphics.”

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But whether the nine warning images that the FDA has chosen will actually end up on cigarette packs is unclear. Lawyers for the tobacco companies point out that while the federal panel upheld the constitutionality of the graphic label requirement, it did not address the content of the images the FDA has selected. The AP reported:

Floyd Abrams, an attorney for Lorillard Tobacco, said the decision applies more broadly to whether the FDA has the right to impose certain marketing regulations on the tobacco industry, but does not specifically address the content of those requirements. For example, the appeals court ruled the FDA could force tobacco companies to put new graphic warning labels on cigarette packs, but does not rule on the specific images proposed by the FDA that another federal judge deemed unconstitutional in late February.

Meanwhile, with the FDA’s proposed warning labels held up in the courts, the Centers for Disease Control and Prevention announced this month its own effort to warn the public about the dangers of smoking. The CDC has launched its first national antismoking advertising campaign, with print, TV, billboard and online ads taking a similarly attention-grabbing approach. The campaign uses striking images to convey the health hazards of tobacco, depicting people whose smoking has caused amputation, tracheotomy, paralysis and heart surgery.

Alice Park is a writer at TIME. Find her on Twitter at @aliceparkny. You can also continue the discussion on TIME’s Facebook page and on Twitter at @TIME.

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