Blog | Wednesday, November 9, 2011

QD: News Every Day--Judge bars mandate for graphic cigarette labels

A U.S. District Court judge issued an injunction barring the federal government from requiring stringent and graphic warning labels on cigarette packages.

Earlier this year, the government unveiled a new look for cigarette packs in which one of nine stark images chosen for their emotional impact would cover at least half the pack. Citing First Amendment rights for free speech, in this case, commercial speech, the judge's decision states that compelling tobacco companies to make statements they wouldn't normally make is compelled speech that the Supreme Court has declared presumptively unconstitutional.

Government-mandated warning labels do not apply in this case because the new cigarette packages showed stark images of smoking's health effects. They are not purely factual and uncontroversial information, the judge ruled. Rather, the images of disease lungs, tracheotomies and in one case, a dead body on a coroner's table were meant to shock the viewer into not smoking.

The judge rebuked the government's effort, saying that the graphic images, which he noted were in some cases digitally enhanced to create more impact, were more than a warning.

The judge wrote, "While characterizing the mandatory textual statements as 'warnings' seems to be a fair and accurate description, characterizing these graphic images as 'warnings' strikes me as inaccurate and unfair. At first blush, they appear to be more about shocking and repelling than warning."

He continued later in his injunction that, "Moreover, it is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: an objective wholly apart from disseminating purely factual and uncontroversial information. Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company's advertising space for Government advocacy can be frustratingly blurry, here - where these emotion-provoking images are coupled with text extolling consumers to call the phone number '1-800-QUIT' - the line seems quite clear."

The judge would later conclude, "And when one considers the logical extension of the Government's defense of its compelled graphic images to possible graphic labels that the Congress and the FDA might wish to someday impose on various food packages (i.e., fast food and snack food items) and alcoholic beverage containers (from beer cans to champagne bottles), it becomes clearer still that the public's interest in preserving its constitutional protections - and, indeed, the Government's concomitant interest in not violating the constitutional rights of its citizens - are best served by granting injunctive relief at this preliminary stage."

The judge in this case, Richard J. Leon, had ruled last year that the Food and Drug Administration could not bar the import of electronic cigarettes as unapproved drug-device combinations.