By Frederic Frommer
WASHINGTON — A federal appeals court Tuesday weighed the constitutionality of requiring large graphic photos on cigarette packs to show that smoking can disfigure and even kill people, with two of the three judges questioning how far the government could go.
Some of the nation’s largest tobacco companies, including R.J. Reynolds, sued to block the mandate. They argued that the government’s proposed warnings go beyond factual information into anti-smoking advocacy. The Obama administration responded that the photos of dead and diseased smokers are factual.
In February, U.S. District Judge Richard Leon ruled that the requirement ran afoul of the First Amendment’s free speech protections and blocked the requirement. The government appealed.
The nine graphic warnings proposed by the Food and Drug Administration 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. Some other images 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.
At Tuesday’s hearing, Judge A. Raymond Randolph, an appointee of Republican President George H.W. Bush, asked if the government could go so far as to require cars to carry a warning that “speed kills,” with a graphic illustration. Justice Department attorney Mark B. Stern replied that he didn’t think there would be any problem with that.
Another Republican appointee, Judge Janice Rogers Brown, asked if the government could mandate a cigarette warning that said, “Stop! If you buy this product, you are a moron,” or “Smokers are idiots.”
“No, I don’t think saying smokers are idiots is accurate,” Stern replied. He said such a warning would be “problematic.”
Brown also questioned if the government was on a path to put warnings on other legal products.
“Where does this stop?” asked Brown, who like District Judge Leon was appointed by Republican George W. Bush.
Lawyers for the tobacco companies made a similar argument in their brief. They superimposed the FDA tobacco image of a cadaver onto a McDonald’s bag with the warning that fatty foods may cause heart disease, and the FDA’s image of a premature baby in an incubator on a bottle of alcohol with a warning that drinking during pregnancy can cause birth defects. They also showed a Hershey’s chocolate bar with half the wrapper covered by a picture of a mouth of rotting teeth and a warning that candy causes tooth decay.
Stern said those comparisons trivialized an important issue. “Addiction really means addiction,” he said, and it was not like eating candy.
The third judge on the panel, Judith W. Rogers, an appointee of Democrat Bill Clinton, didn’t ask any questions of the Obama administration, but she grilled Noel J. Francisco, a lawyer for tobacco companies.
Rogers asked Francisco if he was challenging the accuracy of the FDA’s text warnings, such as smoking causing cancer and heart disease. The lawyer said he was not, but that the government was going beyond mere facts by including a phone number to quit.
“The government is trying to send a powerful message: Quit smoking now,” he said. When the message tells people to live a certain way, it crosses the line from facts to advocacy, he argued.
But Randolph said he had a hard time finding that line, adding that the judges were in “new territory.”
In his ruling, Leon wrote that the graphic images “were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”
“While the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for government advocacy can be frustratingly blurry, here the line seems quite clear,” Leon wrote.
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.
Last month, a federal appeals court in Cincinnati ruled that the law was constitutional.
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.