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Thursday, October 11, 2012

Federal Government Petitions For Full Court Review On Appeals Court Decision Regarding Graphic Cigarette Warning Labels

U.S. Government asks the federal appeals court for a rehearing on graphic health warnings

On October 9, 2012, the U.S. government went back to the federal appeals court to petition a rehearing by the full court regarding the legality of mandating cigarette manufacturers to include graphic warning labels on cigarette packages. We have been covering this story for the past couple of years.

Here is a brief overview of this case leading up to request for a rehearing...

  • In 2009 the Family Smoking Prevention and Tobacco Control Act was passed by the US Congress was passed and signed into law. 
  • This act required that colored graphic warning photos with text were to cover 50% of the front and rear of each package. 
  • In June 2011 the Food and Drug Administration (FDA) submitted the nine new graphic warning labels and these were to appear on cigarette packages by September 2012. 
  • In August 2011, five tobacco companies filed suit against the FDA to reverse the new waning mandate, claiming they were being required to promote the government's anti-smoking campaigns and that this violated their free speech.
  • In November 2011 a federal judge in the US District Court for the District of Columbia temporarily halted the new labels.
  • In February 2012 the federal judge ruled that the labels did violate the right to free speech.
  • In August 2012, the US Court of Appeals in Washington, D.C., upheld the lower court's decision. This ruling was a 2-1 decision.   

CBS News video depicting the suggested graphic warning labels

If you are having trouble viewing the video, you can see it here.

New arguments presented by the U.S. government

According to the St. Louis Post-Dispatch, in the 2-1 decision of August 2012, the court offered:
  1. The cases raises "novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial 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."
  2. 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.
Now the US government is presenting the following reasons for their rehearing petition:
  1. The text of the new warnings is "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."
  2. 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.
This particular case is separate from another lawsuit by several of the tobacco companies involved over the 2009 Family Smoking Prevention and Tobacco Control Act which cleared the way for the graphic warning labels. In March 2012 a federal appeals court in Cincinnati ruled the law was constitutional. For this reason, many believe the decisions are contradictory and it could be the case will ultimately be settled by the U.S. Supreme Court.

A look back...and forward

Do you smoke? If so, do you pay any attention to the current warnings on cigarette packs? In 1966 these warnings were rather simple and cautionary: "Cigarette Smoking May be Hazardous to Your Health." In 1970 the caution was replaced with a warning: "The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health." By 1985 the warnings became more specific like: "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy." Have these warnings helped reduce the number of smokers in the United States? It would seem so: In 1965 42.4% of the U.S. adult population smoked, by 2010 this number had dropped to 19.3%.

Will graphic warning labels help to convince more smokers to quit? Perhaps, but it could be that a person's decision to quit is tied more to their personal experience. For example, successful quitting may be more likely prompted by watching a loved one die from complications related to smoking. Or it may be as simple as pure economics that is the smoker examines their personal budget and realizes they really can't afford to smoke. Even one's personal health may inspire one to quit for good, like a bad case of bronchitis, pneumonia, or pancreatitis.

Have you tried to quit? Would a graphic label encourage you to quit?

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