The federal regulation requiring tobacco companies to display graphic antismoking images on cigarette packs is unconstitutional, a district judge in Washington, D.C., ruled on Feb. 29.
"For corporations as for individuals, the choice to speak includes within it the choice of what not to say," Judge Richard J. Leon, district judge for the District of Columbia, wrote in the court memorandum. "The Government may engage in advocacy using its own voice ... [but] it may not force others, such as Plaintiffs, to serve as its unwilling mouthpiece."
Courtesy of Food and Drug Administration
One of the proposal graphic antismoking images.
Five tobacco companies – R.J. Reynolds Tobacco Company, Lorillard, Commonwealth Brands, Liggett Group, and Sante Fe Natural Tobacco Company – brought suit against the regulations in August 2011.
The Food and Drug Administration unveiled the nine graphic labels in June 2011, after proposed labels and associated regulations were available during a public comment period. In addition to the contrasting lungs, other graphic images included a man breathing through an oxygen mask, a bare-chested male cadaver, a woman weeping uncontrollably, a diseased mouth with what appears to be cancerous lesions, and a cartoon of a premature baby in an incubator.
Under the regulation, cigarette manufacturers would be required to display one of nine textual warnings on all cigarette packages distributed. Warnings include: "Smoking can kill you" and "Cigarettes are addictive."
While the court recognized the government’s right to require certain disclosures for clarity, Judge Leon ruled that "purely factual and uncontroversial information may still violate the First Amendment if they are unjustified and unduly burdensome."
Reactions to the judge’s ruling spurred vehement reaction from traditional tobacco opponents.
The ruling ignores the science and puts children at risk, according to a statement from the American Academy of Pediatrics.
"Judge Leon’s dangerous ruling blatantly ignores significant scientific evidence supporting the effectiveness of larger, graphic warning labels in communicating the health dangers of tobacco use," the AAP statement said. "If allowed to stand, this ruling would make it impossible to implement any effective warning labels and will therefore harm the health and well-being of millions of children."
The Obama administration vowed to continue pursuit of the warnings.
"This administration is determined to do everything we can to warn young people about the dangers of smoking, which remains the leading cause of preventable death in America," the Health and Human Services department said in a statement. "This public health initiative will be an effective tool in our efforts to stop teenagers from starting in the first place and taking up this deadly habit. We are confident that efforts to stop these important warnings from going forward will ultimately fail."
Rep. Henry Waxman (D-Calif.) also criticized the decision.
"These provisions were informed by scientific evidence showing that current warning labels have run their course and that labels with graphic warnings would be more effective in protecting the public’s health from tobacco’s addictive and toxic qualities," Rep. Waxman said in a statement. "Congress did, in fact, carefully consider the First Amendment issues involved and carefully tailored the legislation to ensure the FDA could act as it has proposed with graphic warning labels for tobacco products."
Rep. Waxman said he expects the ruling to be appealed and its constitutionality affirmed.