NEW YORK, June 21 (Reuters) - Graphic images of dead
bodies, decaying teeth and a man exhaling smoke through a hole
in his neck will cover half of the front of all cigarette
packages by September 2012, United States health officials
announced on Tuesday.
The development comes as tobacco companies, including R.J.
Reynolds and Lorillard Tobacco Co, try to stop the rollout of
the U.S. Food and Drug Administration's new labeling
requirements in a lawsuit pending before a federal appeals
court in Cincinnati.
The companies argue that the new regulations under the
Family Smoking Prevention and Tobacco Control Act violate their
First Amendment rights to communicate with adult tobacco
consumers about their products.
Under the new law, "packaging is dominated by burdensome
new warnings that, in an obstructive and argumentative manner,
reiterate information of which consumers are already well
aware," the tobacco companies argued in a brief filed with the
6th Circuit U.S. Court of Appeals. The companies said that the
public and young people in particular already "overestimate"
the dangers of smoking, without the lurid warnings.
A lower-court judge in Kentucky federal court upheld the
bulk of the FDA's new regulatory framework in 2010, including
the new graphic warnings. He wrote that the addition of a
graphic image would not alter the substance of the written
warnings that already appear on cigarette packs, including
"Cigarettes are addictive" and "Smoking can kill you."
Appealing that decision, the cigarette makers argued that
the new layout relegates their marketing message to the bottom
half of the pack where it is "illegible, and hence, invisible,"
according to their brief. The companies accuse the government
of forcing them to disseminate an anti-smoking message in order
to stigmatize and embarrass fully informed consumers.
Richard Daynard, a law professor at Northeastern University
School of Law, described the case as "silly," noting that no
company has ever brought a First Amendment claim against the
FDA for all of the labeling requirements they impose on drug
David Hudson, a scholar at the First Amendment Center, said
that the new graphic warning labels pose serious First
Amendment issues. "The government is compelling the advertisers
to put forth government speech that goes against the marketing
of their products (and) taking valuable advertising space away
from companies," he said.
The government defendants have argued that the new warnings
are more effective at conveying the dangers of smoking, based
on ample scientific evidence that Congress considered in
passing the law. A similar format is already required in Canada
and numerous other nations.
Oral arguments in the case are scheduled for July 27 before
the 6th Circuit.
The case is Discount Tobacco City & Lottery Inc et al v.
USA et al, U.S. Court of Appeals for the 6th Circuit, No.
For the tobacco companies: Charles English and E. Kenly
Ames of English, Lucas, Priest & Owsley as lead counsel.
For the USA: Assistant U.S. Attorney William Campbell;
Andrew Clark, Alisa Klein, Mark Freeman, Sarang Damle, Samantha
Chaifetz, Daniel Tenny, Karen Schifter and Benjamin Kingsley of
the Justice Department.
(Reporting by Terry Baynes)