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Federal Appeals Court Upholds Graphic Anti-Smoking Disclaimers, Other New Regulations

"A warning that is not noticed, read, or understood does not serve its function."

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If you’ve traveled much to other countries, especially in Europe, you’ve probably noticed cigarette packs with massive labels on them, warning of the dangers of smoking. It’s our Surgeon General’s Warning on steroids. “Smoking Kills,” says a British version, eloquent and succinct, across half the pack. Or there’s my favorite, the German “Rauchen kann zu einem langsamen und schmerzhaften Tod führen.” This means: Smoking can lead to a slow and painful death. But it loses a lot of umph in translation.

Soon we might not have to look abroad for big warnings like these. That’s one of the consequences of a U.S. Sixth Circuit Court of Appeals decision handed down today, which upholds most provisions of a new law giving the U.S. Food and Drug Administration (FDA) the power to regulate tobacco products, including the requirement for large, graphic warnings on cigarette packs. The ruling affirms the FDA’s authority to prevent the tobacco industry’s targeting of children and misleading of the American public. It marks the second time the FDA law has been broadly upheld.

Plaintiffs in the case had challenged the law, especially the provision for requiring graphic warning labels on their products, largely on First Amendment grounds. But the court majority found that such labels “are reasonably related to the government’s interest in preventing consumer deception and are therefore constitutional,” and that they “do not impose any restriction on Plaintiff’s dissemination of speech, nor do they touch on Plaintiffs’ core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”

Other key provisions that were upheld in the ruling include those that:

  • Prohibit tobacco companies from making health claims about tobacco products without FDA review;
  • Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, and free samples of tobacco products; and
  • Prohibit tobacco companies from making statements implying that a tobacco product is safer because it is regulated by the FDA.

The ruling today largely affirms an earlier decision by Judge Joseph H. McKinley in the U.S. District Court for the Western District of Kentucky, whose decision upheld the warning labels provision and other provisions of the law. It also serves as a powerful refutation of another, narrower case, in which Judge Richard Leon, of the U.S. District Court for the District of Columbia, struck down the new cigarette pack warnings. That ruling is on appeal to the U.S. Court of Appeals for the DC Circuit, with oral arguments scheduled for April 10.

Today’s decision marks a very clear victory for public health over the tobacco industry’s private interest and long history of deception regarding health hazards, and it strongly supports Congress’ findings in enacting the requirement and finds the warnings are supported by the scientific evidence. I don’t always stand behind Congressional decisions, but for once, at least, they seem to have gotten something right.

While today’s decision largely upheld the new tobacco regulation law, two major provisions were struck down in the decision, including one banning the use of color and imagery in tobacco advertising in locations where lots of kids will see them, and a second prohibiting the use of free gifts to encourage tobacco purchases.

If you want to read the ruling for yourself, the full text of today’s decision can be found here.

Federal Appeals Court Upholds Graphic Anti-Smoking Disclaimers, Other New Regulations
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