A government mandate requiring tobacco companies to place graphic images on their products warning of the dangers of smoking was tossed out Friday by a divided federal appeals court, with the majority saying the requirements were a violation of free speech protections.
The Food and Drug Administration was ordered to immediately revise its rules.
"The First Amendment requires the government not only to state a substantial interest justifying a regulation on commercial speech, but also to show that its regulation directly advances that goal," wrote Judge Janice Rogers Brown. "FDA failed to present any data -- much less the substantial evidence required under the federal law -- showing that enacting their proposed graphic warnings will accomplish the agency's stated objective of reducing smoking rates. The rule thus cannot pass muster" under past court precedent.
The Family Smoking Prevention and Tobacco Control Act, passed in 2009, would have required nine written warnings such as "Cigarettes are addictive" and "Tobacco smoke causes harm to children." Also included would have been alternating images of a corpse and smoke-infected lungs.
"The government's attempt to reformulate its interest as purely informational is unconvincing, as an interest in 'effective' communication is too vague to stand on its own," said Brown, named to the bench by President George W. Bush. "Indeed, the government's chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: 'effective' in what sense?"
In dissent, Judge Judith Rogers said the rules do not violate commercial speech protections.
"The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers," said Rogers, named to the bench by President Clinton. "The tobacco companies' decades of deception regarding these risks, especially the risk of addiction, buttress this interest."
Health groups condemned the latest decision.
"Today's ruling ignores strong scientific evidence supporting the effectiveness of larger, graphic warning labels in communicating the health dangers of tobacco use," said Dr. Robert Block, president of the American Academy of Pediatrics. "With 10 million cigarettes sold every minute and almost 3,000 children under the age of 18 starting to smoke each day, this ruling puts children's lives at risk."
The word and image warning labels would have covered half of the cigarette packs sold at retail outlets and 20% of cigarette advertising. The warnings were scheduled to appear on cigarette packs beginning next month.
While the warnings on cigarettes in the US are woefully inadequate (They're currently required to display only one warning out of several on a pack, so...Buy a carton! Collect them all! Then you'll be
Mandatory inclusion of grotesque images serves no compelling public interest. Of course smoking increases overall healthcare costs, but alcohol bottles aren't required to display images of a person with a swollen belly and yellow skin from cirrhosis, nor are coffee beans required to display images of a stroke victim in soiled pants. The only purpose of grotesque images is to use cheap psychological tactics to condition people into disliking a substance, an admittedly addictive and harmful substance, that happens to be the least popular among politicians.
The argument that tobacco companies target minors gets thrown around a lot, and there may be a sliver of truth to that, but call me back when 25% of all alcohol in the US isn't consumed by minors drinking peppermint schnapps and Mike's Hard Lemonade.
I hate to throw around buzzwords like "nanny state", but these kind of ironically childish tactics are very much paternalism at its most transparent and they would never be resorted to if policy makers thought Americans would actually support a ban on tobacco. But Americans don't, so at least we have judges to put a stop to such nonsense.