WASHINGTON, April 10 (Reuters) - The U.S. government on
Tuesday defended graphic tobacco labels and advertising that use
pictures of rotting teeth and diseased lungs as accurate and
necessary to warn consumers about the risks of smoking.
The U.S. Food and Drug Administration on Tuesday asked a
U.S. appeals court to undo a lower court ruling that said such
labels were unconstitutional, violating tobacco companies'
free-speech rights.
Mark Stern, a lawyer from the U.S. Justice Department
representing the FDA, said the labels showing, for example, a
man smoking through a hole in his throat were necessary to show
the true risks of smoking, including addiction.
"Adolescents notoriously underestimate their ability to
resist addiction," he told the U.S. Court of Appeals for the
District of Columbia Circuit.
"Do (these labels) accurately and realistically depict the
message that this is really addictive? Yes, (they) do."
The Centers for Disease Control and Prevention estimates
some 45 million U .S. adults smoke cigarettes, which are the
leading cause of preventable deaths in the United States.
Congress passed a law in 2009 that gave the FDA broad powers
to regulate the tobacco industry, including imposing the label
regulation. The law requires color warning labels big enough to
cover the top 50 percent of a cigarette pack's front and back
panels, and the top 20 percent of print advertisements.
The FDA released nine new warnings in June 2011 to go into
effect in September 2012, the first change in U.S. cigarette
warning labels in 25 years. Cigarette packs already carry text
warnings from the U.S. Surgeon General.
Reynolds American Inc's R.J. Reynolds unit, Lorillard Inc,
Liggett Group LLC, Commonwealth Brands Inc, which is owned by
Britain's Imperial Tobacco Group Plc, and Santa Fe Natural
Tobacco Co Inc challenged the rule, arguing it would force them
to engage in anti-smoking advocacy against their own legal
products.
"You don't have to be Sherlock Holmes ... to figure out what
the government is doing here: telling people, 'Quit smoking
now,'" said Noel Francisco, a lawyer with Jones Day in
Washington, D.C., who represents the tobacco companies.
He said the labels went beyond simple facts about smoking,
instead trying to disgust or revolt people about cigarettes.
U.S. District Judge Richard Leon sided with the tobacco companies in a February ruling, saying the warning labels were
too big and the government could use other tools to deter
smoking, such as raising taxes or using factual information on
the labels rather than gruesome images.
One of three appeals court judges who heard the case on
Tuesday also appeared to question whether the government was
going too far in trying to warn people about smoking.
"Could you have a text that says, 'Stop, if you buy this,
you are a moron'?" asked Judge Janice Rogers Brown.
And Judge A. Raymond Randolph wondered if the government
could also place warning labels on automobile doors with
gruesome images of car accidents to warn people about the risks
of speeding.
However, Randolph disagreed with the tobacco companies,
saying there is no case that shows commercial disclosure should
only provide information, not deter use of a product.
The judges will rule on the case later, but any decision is
likely to be appealed further and could eventually reach the
U.S. Supreme Court, especially as the tobacco law has led to
divergent rulings in lower courts.
The U.S. Appeals Court for the 6th Circuit, based in
Cincinnati, upheld the bulk of the FDA's new tobacco regulations
last month, including the requirement for warning images on
cigarette packs.
The case on Tuesday was R.J. Reynolds Tobacco Company et al
v. FDA, U.S. Court of Appeals for the District of Columbia
Circuit, No. 11-5332.
For R.J. Reynolds: Noel Francisco and Warren Postman of
Jones Day.
For the FDA: Eric Blumberg of the Food & Drug
Administration.
(Reporting by Anna Yukhananov)
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