Bigger warnings on cigarette packs blocked by federal judge

U.S. District Judge Richard Leon has blocked the federal government’s plan to require cigarette manufacturers to cover half of each package sold with a graphic health warning. In his ruling, issued late Wednesday, Leon said the government mandate amounted to an “impermissible expropriation of a company’s advertising space for government advocacy.”

That decision confirms a temporary stay issued by Leon in November — a move that signaled his view that a suit brought last August by several tobacco manufacturers against the Department of Health and Human Services would likely prevail.

There was no government comment on the ruling on Thursday. But the HHS had appealed Leon’s earlier stay, and the issue is likely to be tied up in litigation for several years. During that time, U.S. cigarette packages will be required to carry one of four text-only warnings against cigarette smoking that have appeared on tobacco products since 1985.

The Food and Drug Administration, which has stepped up its regulation of tobacco since the passage of a 2009 law mandating it, last June unveiled nine new graphic warning labels that were to be carried on every package of cigarettes sold in the United States starting October 2012. (See them all here.)

The labels included stark images and statements depicting the consequences of smoking, as well as a toll-free number that would direct callers to help in quitting. The warnings included explicit photographs of diseased lungs, teeth and lips, and a cadaver stitched up on a steel table after an autopsy, as well as others — a man holding a baby and a distraught woman — that aimed to convey smoking’s toll in more indirect ways. Those pictures, and accompanying messages, were to cover half of each cigarette pack on the U.S. market.

Those warnings, wrote Leon in his ruling Wednesday, were “neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks. Rather, they were calculated to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.”

That intent crossed the line from “constitutionally permissible dissemination of factual information” to “government advocacy,” for which the federal government was proposing to seize advertising space bought and paid for by cigarette makers, he wrote.

Leon suggested, in effect, that if the federal government wished to press its case against tobacco, that it should do so on its own nickel. It could step up its own advertising campaign against smoking, raise taxes on tobacco in a bid to induce smokers to quit or toughen efforts aimed at blocking access to tobacco products by those younger than 21.

But the judge did not rule out cigarette-pack warnings altogether. In suggesting what measures the federal government could be allowed, Leon suggested that changes to the size and/or content of the proposed warning labels might nudge the government’s effort back into the realm of what is constitutionally allowable.

In his ruling, Leon acknowledged that the line between providing factual information — a legitimate governmental role — and seizing private property — in this case advertising space — to carry on a campaign of advocacy is “frustratingly blurry.” But, he added, “here the line seems quite clear.”

In addition to covering the top half of cigarette packs’ front and back, the graphic warning labels were to have constituted one-fifth of advertising paid for by cigarette makers. For tobacco manufacturers, who are restricted in advertising their brands on billboards, in magazines and on TV, packaging has become a key means of drawing the 19.3% of adults who smoke to their brands.

In a statement, Martin L. Holton, executive vice president and general counsel of R.J. Reynolds Tobacco Co., praised Wednesday’s ruling. While public health officials and tobacco companies share responsibilities for informing consumers about “the various health risks” associated with smoking, said Holton, “the goal of informing the American public about the risks of tobacco use can and should be accomplished consistent with the U.S. Constitution.”