It is endlessly surprising that a newspaper whose very existence is protected by the First Amendment would so quickly brush off those same rights for an unpopular industry such as tobacco without even examining the facts. At the very least we would hope that our local paper would acknowledge that the company is entitled to a fair review of these facts in the court system, even if the News & Record is unwilling to do the same (Sept. 1 editorial, “A warning worth hearing”).
Many who support the emotionally charged new labels for cigarettes that were mandated by the Food and Drug Administration ignore one essential fact. Studies continue to show that graphic warning labels are ineffective. Even the FDA’s own regulatory impact analysis fails to show that the proposed warnings will have any impact on the rates of smoking behavior.
The FDA estimated that the labels would reduce U.S. smoking rates by 0.212 percent. This one-fifth of 1 percent reduction, the FDA concluded, was “not statistically distinguishable from zero.”
Michael Siegel, a prominent tobacco control professor at the Boston University School of Public Health, examined the issue by looking at the FDA’s analysis of the impact of graphic warnings in Canada, which the FDA relied on to justify its new labels. He concluded graphic warnings had no statistically significant impact on smoking rates in Canada. Furthermore, after conducting a series of analyses, Siegel estimated that labels in Canada could have actually increased smoking prevalence. On his blog, tobaccoanalysis.blogspot.com, he called the FDA’s analysis “flimsy” and its conclusions “scientifically shaky” that graphic warning labels will reduce smoking prevalence in the United States.
For more than 45 years, cigarettes have been accompanied by Surgeon General’s warnings, and over those years Lorillard never brought a legal challenge to those warnings. But in its announcement, the FDA vastly exceeded the bounds of previous warnings by mandating labels that are not only ineffective but also unconstitutional.
Lorillard as a result filed a lawsuit along with other tobacco manufacturers. Our lawsuit marshals strong legal arguments that the requirement is damaging because it violates the First Amendment. The lawsuit sums it up best: “Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products.”
It appears the requirement is the latest step in the government’s plan of “rebranding of ... cigarette packs,” as Kathleen Sebelius, secretary of the Department of Health and Human Services, said at a news conference. The message was clear. Once the regulation is in effect, much of the current tobacco advertising and product displays will be replaced by the government’s graphic anti-smoking advocacy.
Certainly the government can require warnings. But in our view it is a clear violation of the First Amendment to require a package for a legal product to serve as a minibillboard to carry the government messages and the government pictures in order to advocate that consumers not buy the product.
It is doubly striking that the FDA wants to go down this unconstitutional road in light of its own studies demonstrating the ineffectiveness of the graphic warning labels.
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