Ruling on Cigarette Pack Warnings Stirs Free Speech Debate

Judge Blocks FDA's Graphic Warnings on Cigarette Packs
Judge Blocks FDA's Graphic Warnings on Cigarette Packs

A court ruling Monday stubbed out an FDA attempt to plaster extremely graphic warning labels on cigarette packs. The decision has anti-tobacco groups fuming and has reignited a debate over which right trumps which: The right of the government to warn Americans about the health risks of smoking, or the First Amendment rights of tobacco companies.

One thing both sides agree on -- the labels feature horrific images, including depictions of a man smoking through a tracheotomy hole, a pair of putrefied lungs and even a corpse on an autopsy table. The accompanying texts are stark and unequivocal, such as, "WARNING: Smoking can kill you."

The Food and Drug Administration, which had mandated the labels and was on the losing side of Monday's ruling, says that the disgusting images would reduce the number of smokers by 213,000 by 2013 and save between $221 million to $630 million in health care costs over the next 20 years.

The labels, set to hit cigarettes next year, would have been part of the first update of tobacco warnings in 25 years

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U.S. District Judge Richard J. Leon opined that the images are too far removed from the objective of simply providing consumers with "factual and uncontroversial information." The judge issued an injunction against the FDA that prohibits the labels from being imposed until the lawsuit is resolved, which could take years. Some expect the Supreme Court will ultimately rule on the issue.

"The government's actual purpose is not to inform, but rather to advocate a change in consumer behavior," the judge wrote in this ruling. Compelling the tobacco companies to place advocacy on their marketing space violates their First Amendment rights, he decided.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, disagreed. "The judge mischaracterized the goal, purpose and effect of the warnings," which he said the FDA adopted because it determined "that they were the most effective warnings at communicating the health effects of smoking," he told DailyFinance.

Fifty years of experience with text-only warnings has shown that they are often ignored, said Myers, who has been involved in creating anti-tobacco legislation. "The FDA concluded that for a warning to be effective, it has to be seen, noticed, provoke the reader to think about the issue, and effectively communicate level of risk. The FDA's conclusion about these warnings is based upon the best science -- the science of communication."

This shouldn't come as a surprise, Myers said, noting that tobacco companies use images when they advertise.

According to Myers, it is well-established in First Amendment law that government has the right to require warning labels on dangerous products. "If government has the right to require warnings labels," Myers reasons, "it has the right to require effective warning labels." He said the government will appeal, and that he hopes it does so quickly.

Is it wrong to compel a company to potentially dissuade consumers from buying its products? Or does the appallingly high cost -- both human and financial -- of tobacco use justify such action? Do young people and other at-risk populations need all the help they can get in making healthy life-choices, or have the tobacco companies been regulated enough, with so little advertising space left aside from their packaging? Vote in our poll: