Big Tobacco Is Smoking Hot at the FDA

The nation's biggest tobacco companies are smoking hot at a new FDA rule that will force them to put graphic images - such as a dead body on an autopsy table and diseased body parts - on cigarette boxes and ads. Big Tobacco says such forced speech is unconstitutional.
"Such 'warnings' are unprecedented," the companies say in their federal complaint. "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."
The five plaintiffs include R.J. Reynolds, Lorillard, and the Liggett Group. They sued the U.S. Food and Drug Administration and the Secretary of Health and Human Services.
The rule, which falls under the Tobacco Control Act, will take effect Oct. 22, 2012. It will require all cigarette packages made, starting a month before the deadline, to display the new text and graphic warnings, which must take up 50 percent of the front and back panels of a cigarette box and the top 20 percent of cigarette ads, according to the complaint.
The warnings must contain messages, such as "cigarettes cause cancer" and "smoking can kill you," as well as "color graphics depicting the negative health consequences of smoking."
The tobacco companies say the proposed images are not based upon facts.
"They were to appear in color and they included cartoon images, as well as disturbing, technologically enhanced photographs that used actors to maximize an emotional response from viewers," the complaint states.
The cigarette makers say the FDA acknowledges that the warnings were selected "not to inform consumers of facts that they do not know, but rather to make consumers 'depressed, discouraged, and afraid' to buy tobacco products."
They claim that FDA Commissioner Margaret Hamburg acknowledged that the warnings are meant to turn every pack of cigarettes into a mini-billboard for the government's anti-smoking campaign.
"This is precisely the type of compelled speech that the First Amendment prohibits," the companies say. "While the government may require plaintiffs to provide purely factual and uncontroversial information to inform consumers about the risks of tobacco products, it may not require plaintiffs to advocate against the purchase of their own lawful products."
They cite a 1977 Supreme Court ruling that prohibits the government from compelling companies to use their private property as mobile billboards.
Commonwealth Brands and Santa Fe Natural Tobacco are the other two plaintiffs.
The companies say the new rule violates their First Amendment rights and the Administrative Procedure Act. They want the government enjoined from enforcing the rules.
Big Tobacco has challenged several aspects of the Family Smoking Prevention and Tobacco Control Act since it became federal law in 2009. It has initiated legal battles across the country over the law, claiming that provisions that regulate how tobacco may be advertised and marketed, and the mandated warnings, restrict speech.
The tobacco companies in this case are represented by Noel Francisco with Jones Day.

Big Tobacco Takes On New York Smoking Regulation

New York City used to be the "murder capital" of the country. These days, it looks more like the nation's health club and spa.

In 2003, the Big Apple outlawed smoking in all bars and restaurants, and in 2006 banished trans fats from local eateries. In 2008, the city began requiring chain restaurants to post the nutritional content of their offerings, meaning New Yorkers would never look at a Big Mac the same way again. And earlier this year, a state assemblyman from Brooklyn introduced legislation that would prohibit restaurants from using salt "in any form" when preparing food.

New York has gotten its share of good-humored ribbing about its "nanny state" tendencies over the past few years. But the city's latest regulation is getting more serious pushback from a determined source: the tobacco industry.

For the past six months, New York has required retailers to display posters with nauseating photos that show the effects of prolonged tobacco use. The placards include the typical warnings that smoking "causes lung cancer" or "causes tooth decay" but also feature photos of, for example, a blackened lung or a rotted tooth, to drive the point home in an extremely visceral fashion.

On Wednesday, three leading tobacco companies -- Philip Morris, R. J. Reynolds, and Lorillard -- filed a lawsuit contending the signs improperly usurp the federal government's role of regulating tobacco packaging. The companies also argue that the law violates the First Amendment, since it forces storeowners to display the signs even if they disagree with their message. The New York State Association of Convenience Stores, a non-profit trade association made up of 250 companies, also joined the suit.

"The mandated signs crowd out other advertisements and otherwise dominate the point of sale in many smaller establishments, to the exclusion of merchandise or other messages chosen by the store owners," the suit says.

Floyd Abrams, a First Amendment lawyer who is representing the retailers, told The New York Times on Friday that the city "doesn't have the right...to force other people to adopt its expression."

Sarah Perl, assistant commissioner for tobacco control at New York's Department of Health and Mental Hygiene, told the Times in December that the posters are intended to target consumers "at the point-of-sale moment." Perl added that customers have learned to tune out the generic Surgeon General's warnings that appear on all cigarette packs and advertisements, in large part because those warnings haven't changed much since their introduction in 1966.

Regardless of the outcome, the suit will have far-reaching consequences even outside New York. Massachusetts, which was in the process of implementing a law requiring similar signs, has a special interest in the case.

"Any education and cessation material we can get out there, we would like to get out on a state level," Jennifer Manley, a spokeswoman for the Massachusetts Department of Public Health, told Boston.com on Sunday. "We're going to keep watching New York City closely to see what the outcome is."

And even if the tobacco companies win this round, they'll take a hit in 2012, when federal standards will begin mandating more conspicuous warnings on cigarette packages. Unlike the subtle black-and-white boxes currently featured on the sides of cigarette boxes, the Family Smoking Prevention and Tobacco Control Act requires that warnings cover at least 50 percent of the package and that the word "warning" appear in capital letters.

The Act was signed into law by President Obama, himself an occasional smoker, last June.