Federal Appeals Court Upholds Graphic Cigarette Warnings and Other Key Provisions of New Tobacco Regulation Law

Statement of Susan M. Liss,Executive Director, Campaign for Tobacco-Free Kids

WASHINGTON, March 19, 2012 /PRNewswire-USNewswire/ -- Delivering a significant victory for public health, the U.S. Court of Appeals for the Sixth Circuit today upheld most provisions of the new law giving the U.S. Food and Drug Administration (FDA) the power to regulate tobacco products, including the requirement for large, graphic warnings on cigarette packs.  This ruling affirms the authority of the FDA to take critical action to prevent the tobacco industry from continuing to target our children and mislead the American public. It marks the second time the FDA law has been broadly upheld.

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Importantly, the court majority found that the law's requirement for large, graphic cigarette warning labels "are reasonably related to the government's interest in preventing consumer deception and are therefore constitutional."  The court found that the warnings "do not impose any restriction on Plaintiff's dissemination of speech, nor do they touch on Plaintiffs' core speech. Instead, the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco."

The court also upheld key provisions of the law that:

• Prohibit tobacco companies from making health claims about tobacco products without FDA review;
• Ban several forms of tobacco marketing that appeal to children, including brand name sponsorships, tobacco-branded merchandise such as caps and t-shirts, and free samples of tobacco products; and
• Prohibit tobacco companies from making statements implying that a tobacco product is safer because it is regulated by the FDA.

This ruling is a clear victory for public health. It recognizes that Congress acted appropriately, based on the science and in accordance with First Amendment principles when it passed the law granting the FDA authority over tobacco products. This ruling is a critical step toward allowing the FDA to move forward in reducing the death and disease caused by tobacco use, which is the nation's number one cause of preventable death.

Today's ruling for the most part affirms an earlier decision by Judge Joseph H. McKinley in the U.S. District Court for the Western District of Kentucky. Judge McKinley's decision upheld the cigarette warning labels requirement and most other provisions of the law.

In a separate, narrower case, Judge Richard Leon, of the U.S. District Court for the District of Columbia, struck down the new cigarette pack warnings.  That ruling is on appeal to the U.S. Court of Appeals for the DC Circuit, with oral arguments scheduled for April 10.

Today's majority ruling is a powerful refutation of Judge Leon's reasoning in striking down the cigarette warning requirement.  In addition to finding that the warning requirement is constitutional, today's ruling strongly supports Congress' findings in enacting the requirement and finds the warnings are supported by the scientific evidence and the tobacco industry's long history of deception regarding the health hazards of its products.

"Tobacco manufacturers and tobacco-related trade organizations knowingly and actively conspired to deceive the public about the health risks and addictiveness of smoking for decades," the majority opinion states.  "In addition to this decades-long deception by Tobacco Companies, their advertising promoting smoking deceives consumers if it does not warn consumers about tobacco's serious health risks...

"Faced with evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act's new warnings are reasonably related to promoting greater public understanding of the risks.  A warning that is not noticed, read, or understood does not serve its function.  The new warnings rationally address these problems by being larger and including graphics."

In addition, the appeals court majority countered Judge Leon's argument that the proposed labels are meant to incite an emotional response and therefore constitute 'opinions' that don't pass legal scrutiny. "Facts can disconcert, displease, provoke an emotional response, spark controversy and even overwhelm reason, but that does not magically turn such facts into opinions," the Sixth Circuit opinion states.

It is disappointing, however, that today's ruling strikes down two provisions of the law: one that bans the use of color and imagery in tobacco advertising in locations viewed by large numbers of youth and a second that prohibits free gifts with purchase of tobacco products.  We believe these provisions are constitutional because they serve the compelling government interest of discouraging tobacco use by children and are narrowly tailored to serve that interest.  While the court struck down the ban on color and imagery as overly broad, it indicated it would uphold a narrower ban that applied to media and situations where the government demonstrated the impact on children.

Today's ruling can be found at: http://www.ca6.uscourts.gov/opinions.pdf/12a0076p-06.pdf

SOURCE Campaign for Tobacco-Free Kids