As some of you may have already heard, earlier today a U.S. appeals court in Washington, D.C. struck down the graphic cigarette warnings required by the Family Smoking Prevention and Tobacco Control Act, a landmark 2009 law giving the FDA broad powers to regulate the tobacco industry. The court’s majority found the label requirement from the FDA violated corporate speech rights protected under the First Amendment. This decision—which contradicts an earlier ruling by a federal appeals court in Cincinnati—sets up the possibility that the Supreme Court will weigh in on the dispute. According to news accounts, the labeling requirement provided under the FSPTC Act, if implemented, would mark the first change to cigarette warning labels in the United States in 25 years.   

For more information about today’s decision, we recommend consulting this article from Reuters and the press release issued by the Campaign for Tobacco-Free Kids (both of which are also pasted below), as well as the full text of the D.C. court’s opinion. To view the nine (9) graphic warnings which were at issue in the decision, click here.

U.S. court strikes down graphic warnings on cigarettes

12:33pm EDT

By David Ingram and Anna Yukhananov

WASHINGTON (Reuters) - A U.S. appeals court on Friday struck down a law that requires tobacco companies to use graphic health warnings, such as of a man exhaling smoke through a hole in his throat.

The 2-1 decision by the court in Washington, D.C., contradicts another appeals court's ruling in a similar case earlier this year, setting up the possibility the U.S. Supreme Court will weigh in on the dispute.

The court's majority in the latest ruling found the label requirement from the U.S. Food and Drug Administration violated corporate speech rights.

"This case 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 -- in this case, by making 'every single pack of cigarettes in the country mini billboard' for the government's anti-smoking message," wrote Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.

The FDA "has not provided a shred of evidence" showing that the graphic labels would reduce smoking, Brown added.

Five tobacco companies representing most of the major cigarette makers in the United States challenged the FDA rules: Reynolds American Inc, Lorillard Inc; Commonwealth Brands Inc, which is owned by Britain's Imperial Tobacco Group Plc; Liggett Group LLC and Santa Fe Natural Tobacco Co Inc.

The FDA has argued the images of rotting teeth and diseased lungs are accurate and necessary to warn consumers -- especially teenagers -- about the risks of smoking.

The health agency said on Friday that it does not comment on possible, pending or ongoing litigation. The U.S. Department of Justice, which argued the case for the FDA, said it needs to review the ruling before deciding on next steps.

The Campaign for Tobacco-Free Kids, which has vigorously supported stricter cigarette laws, urged the government to appeal.

"Today's ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings," said Matthew Myers, the group's president, in a statement.

YOUTH EPIDEMIC

The Centers for Disease Control and Prevention estimates some 45 million U.S. adults smoke cigarettes, which are the leading cause of preventable death in the United States. And the World Health Organization predicts smoking could kill 8 million people each year by 2030 if governments do not do more to help people quit.

The U.S. Surgeon General warned in March that youth smoking has reached epidemic proportions, as one in four U.S. high school seniors is a regular cigarette smoker, paving the way to a lifetime of addiction.

Judge Judith Rogers, who wrote the dissenting opinion, said the FDA warnings were factual, and necessary to counter tobacco companies' history of deceptive advertising.

"The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers," she wrote.

Congress passed a law in 2009 that gave the FDA broad powers to regulate the tobacco industry, including imposing the label regulation. The law requires color warning labels big enough to cover the top 50 percent of a cigarette pack's front and back panels, and the top 20 percent of print advertisements.

The FDA released nine new warnings in June 2011 that were meant to go into effect this September, the first change in U.S. cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General.

The ruling against the FDA means tobacco companies will likely not have to comply with the requirements for now, given divergent court rulings.

The U.S. Appeals Court for the 6th Circuit, based in Cincinnati, upheld the bulk of the FDA's new tobacco regulations in March, including the requirement for warning images on cigarette packs.

The difference in the two cases is that the FDA had not introduced the specific images when the companies filed the 6th Circuit suit. While the Washington suit focused on the images, the appeals court in Cincinnati addressed the larger issue of the FDA's regulatory power.

Most countries in the European Union already carry graphic images to illustrate the health risks of smoking. Earlier this month, Australia took a further step to limit smoking advertising by banning company logos on cigarette packs, and the EU said it was considering a similar ban.

(Reporting by David Ingram and Anna Yukhananov; Editing by John Wallace, Lisa Von Ahn and Tim Dobbyn)

Court Ruling Against Cigarette Warnings is Wrong on the Science and Law and Should be Appealed

Statement of Matthew L. Myers, President, Campaign for Tobacco-Free Kids

Aug. 24 2012

WASHINGTON, DC – The Justice Department should quickly appeal today's ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down the large, graphic cigarette warnings required by the landmark 2009 law giving the FDA authority over tobacco products. Today's ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings. The only other appellate court to consider the issue, the U.S. Court of Appeals for the Sixth Circuit, upheld the graphic warnings requirement in March. The split decisions make it likely the U.S. Supreme Court will settle the issue.

The graphic cigarette warnings were mandated by a large, bipartisan majority of Congress. As the Sixth Circuit's ruling recognized, Congress acted based on strong scientific evidence and in accordance with First Amendment precedents that support the government's right to regulate commercial speech and require strong warning labels to protect public health.

The Sixth Circuit found that the law's requirements for graphic warnings "are reasonably related to the government's interest in preventing consumer deception and are therefore constitutional." That court found that the warnings "do not impose any restriction on Plaintiff's dissemination of speech, nor do they touch on Plaintiffs' core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco."

In requiring the graphic warnings, Congress relied on an extensive scientific record demonstrating both the need for the new warnings and their effectiveness. That record shows that the current, text-only warnings – which are printed on the side of cigarette packs and haven't been updated since 1984 – are stale and unnoticed.

Studies around the world and evidence presented to the FDA also show 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 (see our fact sheet summarizing the evidence). Because of that evidence, at least 43 other countries now require large, graphic cigarette warnings.

Tobacco companies are fighting the graphic warnings precisely because they know such warnings are effective. The companies continue to spend billions of dollars to play down the health risks of smoking and glamorize tobacco use. These new warnings will tell the truth about how deadly and unglamorous cigarette smoking truly is. Research has found that pack-a-day smokers could be exposed to cigarette health warnings more than 7,000 times per year. The new warnings will provide a powerful incentive for smokers to take the life-saving step of quitting and for kids never to try that first cigarette.