April 11, 2012
FDA Asks Appeals Court To Overturn Graphic Cigarette Labels
“It doesn’t matter how big the warnings on the cigarettes are; you could have a black pack, with a skull and crossbones on the front, called TUMORS, and smokers would be around the block going, ‘I can’t wait to get my hands on these… things! I bet ya get a tumor as soon as you light up!’”
In a move that appears to be straight out of Dennis Leary’s famous stand-up comedy movie “No Cure for Cancer,” the FDA challenged a U.S. District Court ruling that banned the mandating of graphic images on all cigarette packaging on Tuesday.
The administration disputes the 19-page March ruling by U.S. District Court Judge Richard Leon that said the requirement would “violate the First Amendment by unconstitutionally compelling speech” for companies and could set a dangerous precedent.
At Tuesday’s U.S District Court of Appeals hearing, FDA lawyer Mark Stern explained to the court that the graphic labels were necessary because they made a direct and immediate connection to the possible consequences of smoking cigarettes, especially for young smokers.
“Adolescents notoriously underestimate their ability to resist addiction,” he said.
“Do (the images) accurately and realistically depict the message that this is really addictive? Yes.”
Judge Janice Rogers Brown, asked if the government could mandate aggressive cigarette packaging that included messages like, “Stop! If you buy this product, you are a moron,” or “Smokers are idiots.”
“No, I don’t think saying ‘smokers are idiots’ is accurate,” Stern replied. He said such a warning would be “problematic.”
Judge A. Raymond Randolph, wondered aloud if the same policy could be extended to other businesses like those in the automobile industry that could be compelled to include graphic car crash images and phrases like “speed kills.”
Lawyers for tobacco companies fighting against the mandated packaging made similar arguments. To make their case, they superimposed the graphic FDA images over a McDonald’s bag with warnings that that company’s food causes heart disease. They also made similar packaging that linked alcohol to birth defects and Hersey’s chocolate to tooth decay.
Stern said some of those comparisons trivialized the important issue of nicotine addiction, which cannot be equated to eating candy or fast food.
Arguments took a political bent as the only judge appointed by a Democrat, Judith W. Rogers, did not question Obama administration officials, but instead focused on tobacco company lawyer Noel J. Francisco, who argued that the government was going beyond mere facts with the campaign and forcing tobacco companies to advocate against their own products.
“You don’t have to be Sherlock Holmes … to figure out what the government is doing here: telling people, ‘Quit smoking now,'” he said.
In 2009, Congress passed a law that gave the FDA sweeping powers with respect to regulating the tobacco industry, its packaging, and its advertising. This was followed by nine new warning labels issued by the administration in June 2011 that would go into effect in September. The debut of these labels would change cigarette packaging for the first time in 25 years.
Many expect any ruling by the appellate court to be challenged, with the possibility of the case eventually reaching the Supreme Court.