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North American Quitline Consortium
 DC Circuit Won't Hear Appeal in Graphic Warning Labels Case!
Dear Colleagues,
NAQC just learned that the US Government’s request for an appeal in the graphic warning label case has been denied. The U.S. Justice Department now will determine whether or not to appeal to the Supreme Court. As discussed below, the government has 90 days to make a decision. If it decides to make an appeal to the Supreme Court, it will be the last opportunity to gain approval to move forward with graphic warnings. These two stories provide background on the court’s decision. We will keep you updated as more information becomes available.

 Associated Press
Appeals court won't reconsider graphic tobacco warning labels

This combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers would have had to use by the fall of 2012. Federal judges have ruled the labels violate First Amendment free speech protections.

This combo made from file images provided by the U.S. Food and Drug Administration shows two of nine new warning labels cigarette makers would have had to use by the fall of 2012.

RICHMOND, Va. An appeals court on Wednesday denied the federal government's request to reconsider a decision blocking a requirement that tobacco companies put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.

In its filings, the U.S. Court of Appeals in Washington, D.C., did not provide any reason denying the request for the full court or a panel to rehear the case.

In August, a three-judge panel affirmed a lower court ruling blocking the Food and Drug Administration mandate, saying it ran afoul of the First Amendment's free speech protections.

A Justice Department spokesman declined to comment. The government has 90 days to appeal the decision to the U.S. Supreme Court.

Some of the nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., sued to block the mandate to include warnings to show the dangers of smoking and encouraging smokers to quit lighting up. They argued that the proposed warnings went beyond factual information into anti-smoking advocacy. The government argued the photos of dead and diseased smokers are factual.

The nine graphic warnings proposed by the FDA include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat, and a plume of cigarette smoke enveloping an infant receiving a mother's kiss. These are accompanied by language that says smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline, 1-800-QUIT-NOW.

Tobacco companies increasingly rely on their packaging to build brand loyalty and grab consumers - one of the few advertising levers left to them after the government curbed their presence in magazines, billboards and TV.

The appeals court panel in August wrote that the case raises the question of whether the government can force the manufacturer of a product to go beyond making purely factual and accurate disclosures and undermine its own economic interest - in this case, by making "`every single pack of cigarettes in the country (a) mini billboard' for the government's anti-smoking message." It wrote that the FDA "has not provided a shred of evidence" showing that the warnings will "directly advance" its interest in reducing the number of Americans who smoke.

But the government argued in its appeal for rehearing that the text of the new warnings are "indisputably accurate" and the format, including the use of graphics, is tailored to the demand of a "market in which the vast majority of users become addicted to a lethal product before age 18." It also argued that the First Amendment does not require the government to show how one part of a multi-faceted anti-smoking public health campaign directly reduces smoking rates.

Warning labels first appeared on U.S. cigarette packs in 1965, and current warning labels that feature a small box with text were put on cigarette packs in the mid-1980s. Changes to more graphic warning labels that feature color images of the negative effects of tobacco use were mandated in a law passed in 2009 that, for the first time, gave the federal government authority to regulate tobacco.

The share of Americans who smoke has fallen dramatically since 1970, from nearly 40 percent to about 19 percent. But the rate has stalled since about 2004, with about 45 million adults in the U.S. smoking cigarettes. It's unclear why it hasn't budged, but some market watchers have cited tobacco company discount coupons on cigarettes and lack of funding for programs to discourage smoking or to help smokers quit.

In recent years, more than 40 countries or jurisdictions have introduced labels similar to those created by the FDA. The World Health Organization said in a survey done in countries with graphic labels that a majority of smokers noticed the warnings and more than 25 percent said the warnings led them to consider quitting.

Joining North Carolina-based R.J. Reynolds, owned by Reynolds American Inc., and Lorillard Tobacco, owned by Lorillard Inc., in the lawsuit are Commonwealth Brands Inc., Liggett Group LLC and Santa Fe Natural Tobacco Company Inc.

Richmond, Va.-based Altria Group Inc., parent company of the nation's largest cigarette maker, Philip Morris USA, which makes the top-selling Marlboro brand, is not a part of the lawsuit.

The case is separate from a lawsuit by several of the same tobacco companies over the 2009 Family Smoking Prevention and Tobacco Control Act, which cleared the way for the more graphic warning labels and other marketing restrictions. The law also allowed the FDA to limit nicotine and banned tobacco companies from sponsoring athletic or social events or giving away free samples or branded merchandise.

In March, a federal appeals court in Cincinnati ruled that the law was constitutional. The companies in October petitioned the U.S. Supreme Court to review that case.

© 2012 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

 Winston-Salem Journal
Successful appeal of cigarette labels could end up in U.S. Supreme Court
Posted: Wednesday, December 5, 2012 1:10 pm
Richard Craver/Winston-Salem Journal

The legality of placing graphic warnings on cigarette packages appears even more likely to be heard by the U.S. Supreme Court after a federal appeals court reaffirmed today that the labels violate tobacco companies' free-speech rights under the First Amendment.

The U.S. Court of Appeals in Washington voted 2-1 to deny the Food and Drug Administration’s request to reconsider its August ruling that affirmed the Feb. 29 ruling by U.S. District Court Judge Richard Leon, who blocked the images.

The Washington appeals court provided today only a two-sentence order in which it denied the FDA’s appeal, which was filed Oct. 9.

The FDA did not provide immediate comment on the denial of its request. It has 90 days to appeal the denial to the U.S. Supreme Court.

In a separate legal track, an Ohio federal appeals court in March upheld, also by a 2-1 vote, the required graphic images in cigarette marketing. That decision is being appealed by tobacco manufacturers.

John Dinan, an associate professor of political science at Wake Forest University, expects the U.S. Supreme Court will agree to address the graphic-warning labels, “especially because the lower federal courts are divided on this question.”

The nine labels – including images of sewn-up cadavers, dead bodies, diseased lungs and gums and cigarette smoke drifting around an infant – were chosen by the FDA in June 2011 to debut Sept. 22 this year.

Five tobacco companies, including R.J. Reynolds Tobacco Co., are the main plaintiffs in both lawsuits. The companies are challenging the constitutionality of the mandated labels, which would cover the top 20 percent of any advertisement and the top half of a cigarette box.

Reynolds could not be reached for immediate comment on the appeals court decision.

Leon said in his February ruling that “the government has failed to carry both its burden of demonstrating a compelling interest and its burden of demonstrating that the rule is narrowly tailored to achieve a constitutionally permissible form of compelled commercial speech. The graphic images are neither factual nor accurate.”

The Washington appeals court said in its majority opinion in August that it took into consideration the FDA's “lament that their previous efforts to combat the tobacco companies' advertising campaigns have been like bringing a butter knife to a gun fight.”

“The graphic warnings represent FDA's attempt to level the playing field, not only by limiting the companies' ability to advertise, but also by forcing the companies to bear the cost of disseminating an anti-smoking message.”

But the Washington appeals court said the government is not permitted to “quiet the speech or to burden its messengers” with counteracting marketing efforts it finds “too persuasive.” The appeals court said the FDA “has not provided a shred of evidence” to show that the graphic labels would reduce smoking rates.

By comparison, the 6th Circuit judges in Ohio ruled that “ample evidence establishes that current warnings do not effectively inform consumers of the health risks of tobacco use and that consumers do not understand these risks.”

Health advocates and health officials have vigorously debated whether the labels would be effective. For example, an FDA study released in October 2010 found that although the labels might stir the emotions of smokers, they might not cause smokers to quit.

The Washington appeals court’s decision in August drew predictably contrasting responses from tobacco companies and anti-tobacco advocacy groups.

“We are pleased that the Court of Appeals agreed with Reynolds that consumers can and should be fully informed about the risks of tobacco use in a manner consistent with the U.S. Constitution,” says Martin Holton III, general counsel for Reynolds.

Holton called the FDA's graphic images “inflammatory” and said its overall effort is “an unabashed attempt to evoke emotion, and perhaps embarrassment, and browbeat consumers into quitting.”

Mark Gottlieb, executive director of the Public Health Advocacy Institute at Northeastern University School of Law, said the Washington appeals court ruling “leaves the FDA in a very difficult position as it seeks to execute the intent of Congress, which specifically called for large graphic warnings on cigarette packs.”

“The ruling would seem to say the small Surgeon General textual warnings might also violate the cigarette companies' rights to commercial free speech because there is inadequate scientific proof that those labels reduce smoking rates,” Gottlieb said.

“Surely a product that addicts and kills nearly a half-million Americans each year is one that demands warnings that garner serious attention by consumers.”

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