Tobacco companies scored a major victory this week at the expense of consumer health. On February 28, a Washington, D.C. Federal Court blocked Federal legislation and an FDA regulation aimed at requiring tobacco companies to put graphic warnings on every cigarette package sold and in print advertising. The Court found that requiring the use of images violated the tobacco companies’ free speech rights.
Many countries around the world—including Canada and the United Kingdom—require such warnings on cigarettes sold in their country and the U.S. Congress attempted to join their ranks a few years ago. Specifically, in 2009, Congress passed the Smoking Prevention and Tobacco Control Act, which included a mandate for the Food and Drug Administration to pass regulations requiring tobacco companies to include pre-selected color images showing the risks of smoking. Nine images to be paired with textual warnings were ultimately chosen after an extensive review process involving the public, retailers, health professionals, advocacy groups, the tobacco industry and government health agencies, among others.
According to the regulations, these graphic images would feature prominently on cigarette packaging and in print advertisement. For example, the image would appear on both the front and back of a package of cigarettes and would have to cover the top 50% of the package. In print advertising, the image would have to amount to 20% of the advertisement. These strong warnings have proven effective at reducing smoking in other countries where such regulations exist. The FDA expected similar results in the United States where tobacco use is the leading cause of premature and preventable death and costs the U.S. economy an estimated $200 billion every year.
Not surprisingly, tobacco companies were not too keen on putting these types of graphic warnings on their product and several of them filed suit, claiming that the warnings would be cost prohibitive and would dominate and damage the packaging and promotion of their brands. Essentially, they argued that the warning labels were not intended to provide additional, useful and factual information to consumers, but rather that the government was forcing them to advertise against their own product.
The D.C. Circuit judge agreed with the tobacco companies, saying that while the government might have a strong interest in educating the public about the dangers of smoking, an interest in advocating for public health cannot serve as justification for the strong regulations. In other words, the court accepted the argument that the government overstepped its bounds in mandating the images and their size in that that there are other tools the government could use to educate the public.