Tobacco cos. win stay on implementation of emotionally charged anti-smoking images

WASHINGTON — Tobacco companies received a favorable ruling Monday and as a consequence will not have to institute new graphics that depicted images like diseased smokers on their packaging next year.

The U.S. District Court for the District of Columbia delayed Food and Drug Administration enforcement of new tobacco labeling requirements, that was to have begun no later than September 2012, for 15 months following the outcome of the suit filed by five tobacco companies, suggesting that the tobacco companies may prevail in eliminating the new packaging requirements altogether.

"Unfortunately for the government, the evidence here overwhelmingly suggests that the rule's graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable," wrote U.S. District Judge Richard Leon in a 29-page opinion supporting the court's ruling. "Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of 'purely factual.' That the images were unquestionably designed to evoke emotion — or, at the very least, that their efficacy was measured by their 'salience,' which the FDA defines in large part as a viewer's emotional reaction — further undercuts the government's argument that the images are purely factual and not controversial."

The nine graphic images (to view, click here) were designed to discourage new smokers from taking up the habit and to encourage current smokers to quit. The images were to take up the top 50% of the front and back panels of all cigarette packages and the top 20% of printed advertising.

The warnings represented the most significant changes to cigarette labels in more than 25 years and were to affect everything from packaging to advertisements. “These labels are frank, honest and powerful depictions of the health risks of smoking, and they will help,” Department of Health and Human Services secretary Kathleen Sebelius stated this summer when the FDA released the approved images. “These labels will encourage smokers to quit and [will] prevent children from smoking.”

Judge Leon concluded that the tobacco plaintiffs, who are charging the new label requirements violate their First Amendment rights, presented a very strong case against the government. "The government has neither carried its burden of demonstrating a compelling interest, nor demonstrated how the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech," he wrote. "As a result, plaintiffs are likely to succeed on the merits and this factor weighs heavily in favor of awarding injunctive relief."

While the tobacco plaintiffs have secured an injunction of the new labeling requirements, the court has not yet ruled on the case. "This case poses a constitutional challenge to a bold new tact by the Congress and the FDA in their obvious and continuing efforts to minimize, if not eradicate, tobacco use in the United States," Leon wrote.

The tobacco companies that collectively filed the suit include R.J. Reynolds, Lorillard Tobacco, Commonwealth Brands, the Liggett Group and Santa Fe Natural Tobacco.