Tobacco: The U.S. Can't Handle The Truth...

A few years ago, the FDA mandated that tobacco companies put the labels on cigarette boxes warning smokers about the deadly health effects of tobacco. The tobacco companies sued, claiming the FDA was "compelling speech", which was unconstitutional. Last year we checked in with the legal wranglings of the case when one District Court judge ruled that the tobacco companies shouldn't have to display the images or print 1-800-QUIT-NOW on cigarette boxes.

FDACigaretteLabels

Cigarette Warnings
via the Food and Drug Administration.

The battle over graphic picture tobacco warning labels is actually world-wide and decades old. Tobacco companies fought ferociously against the first country that tried to enforce graphic labels in 1986, fashion-forward Iceland. Today, more over 50 countries require text warnings, and a growing number are moving to picture warnings. Australia passed one of the strictest laws, as Stanton Glantz recently described:

"All the cigarette packages are going to have to be the same kind of puke-green color with the name of the company and the variety on standard type on half the pack, and the other half of the pack will be a large graphic warning label."

Graphic Labels: Nails in The Coffin?

The cigarette companies battle against these labels for a reason. Compared to text warnings, the graphic pictures scare the heck out of smokers research shows, especially people with less education.

However, through the court systems, tobacco companies have successfully bogged down governments' attempts at regulation. In Canada, the Supreme Court last year ruled that Imperial Tobacco couldn't draw the government into a class action case. Imperial had argued that the government shared the health costs of smoking since it had allowed Imperial to market "light" cigarettes. The court dismissed their argument. In Scotland, Imperial Tobacco recently challenged the government ban on displays in shops, claiming that the law is "anti-choice". Scotland's' Supreme Court - Lord Hope, Lord Walker, Lady Hale, Lord Kerr and Lord Sumption, are currently hearing arguments in the case.

In the US, tobacco companies recently asked the Supreme Court to hear their First Amendment arguments after another District Court claimed that the FDA rules were constitutional, the opposite of the previous District Court's decision. The tobacco companies have petitioned the court to decide 1) whether the FDA's label mandate violates the First Amendment 2) if the FDA is stepping on companies' free speech rights to promote "modified risk" products, and 3) whether the companies have a First Amendment right to offer free gifts and samples to entice potential smokers. The FDA has until the end of November to respond, and after that the Supreme Court will decide whether to take the case.

Tobacco: A Dilemma?

Some observers speculate whether the Supreme Court will take the case, but authors of a recent New England Journal of Medicine article think the Supreme Court will hear it. The NEJM article reviews the background of the commercial speech doctrine and the speculates various outcomes for the case.1 The authors say commercial speech was first recognized as a lower value speech in the mid-1970's. From there, the court has enabled creep that brings the commercial speech doctrine to its current very controversial status, where it can essentially curb states' abilities to candidly warn consumers about about health risks of things like smoking.

Because of the court's commercial speech doctrine, the authors write, the FDA can best frame their arguments for the cigarette warnings as promoting consumer choice, rather than as protecting public health and discouraging smoking. This not only hobbles the FDA's ability to frame and defend their arguments for public health, the authors write, it gives the cigarette companies the advantage in defending themselves because they can argue that the FDA is not trying to promote consumer choice, rather it's attempting to influence the behavior of smokers by browbeating them.

Faced with the science related to tobacco, the health affects of smoking, and the tax burden of health costs shared by all citizens, tobacco's costly legal protests seem crazy. However, the Supreme Court has often sided with corporations, and has been quite skeptical of government regulation. As well, science and economics don't necessarily win the day over "free speech" in US courts. So altogether the FDA's idea that science derived photos inform consumers in ways that are hard to ignore, these arguments may not win. The Supreme Court hasn't seemed particularly swayed by science arguments or sympathetic to public health arguments.

So if the tobacco companies and courts continue to dither over the FDA's graphic warnings, thereby keeping them off the cigarette boxes, maybe journalists can write lots of stories about the controversy and include lots of the graphics that the smokers are missing out on?

1Ronald Bayer, Ph.D., Lawrence Gostin, J.D., and Daniel Marcus-Toll, M.S.: Repackaging Cigarettes -- Will the Courts Thwart the FDA? November 14, 2012DOI: 10.1056/NEJMp1211522

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