Federal mandate requires tobacco companies to place graphic images on their products warning about the dangers of smoking have been released into the environment a judge in Washington, with the judge saying the requirements are in violation of freedom of speech.
“Unfortunately, because Congress did not consider the implications of the First Amendment to the Act, he does not care about how the rules can be narrowly specifically to avoid unintended compelling commercial speech,” said Federal Judge Richard Leon in his 19-page decision.
Family Smoking Prevention and Tobacco Control Act passed in 2009 would have required nine written warnings such as “Cigarettes are addictive” and “Tobacco smoke harms children.” It would also be alternating images of a corpse and smoke-infected lungs.
The group of tobacco companies, led by RJ Reynolds and Lorillard filed a lawsuit, claiming that the warning would have been prohibitive, and will dominate and damage the packaging and promotion of specific brands. Legal question was whether the new mark was purely factual and precise nature and was designed to discourage the use of products.
“Graphic images here were not designed to protect consumers from confusion and deception, or to increase consumer awareness of the risks of smoking,” saidLeon. “Most likely they were designed to cause a strong emotional reaction calculated to provoke the viewer to stop smoking or never start smoking.”
Other color images is required in accordance with the rules of the Food and Drug Administration would be: a man smoking through a tracheotomy hole in his throat, smoke wafting from the child, who kissed her mother, the patient’s mouth allegedly from cancer of the oral cavity associated with chewing tobacco and the woman crying uncontrollably.
There was no immediate reaction to the ruling from the FDA and the Department of Justice, which defends the rights in court, said that he refused to comment.
But the president of the American Cancer Society Cancer Action Network, said the ruling “is bad for public health.”
“Today’s decision ignores the vast, long-term need for strong health warnings on cigarettes and Big Tobacco can continue” business as usual “continues to promote its highly addictive and deadly products,” Christopher W. Hansen said in a statement from the Cancer Action Network.
Richard Daynard, a lawyer and critic who heads the smoking of tobacco products liability project inBoston rejected the argument ofLeon.
“First of all, Congress has considered,” he said in a telephone interview. “They have a complex of facts in the preamble to the statute that directly relate to why this is now compelling state interest, the public interest to restrict cigarette advertising.
He said the ruling “shows a complete lack of sensitivity to public health dimensions of the epidemic of smoking, because it was cleverly demonstrated time and time again that tobacco marketing encourages children to start smoking.”
The way to combat this, he said, with such a strong image thatLeonhas ruled against it. “Negative advertising works,” said Daynard. “Everyone knows that.”
Lorillard lawyer Floyd Abrams applauded the legal opinion. “The government, as noted by the court, has the right to speak for him, but he can not, except in rare circumstances, to demand from other companies of its position,” said Abrams, a renowned scholar of the First Amendment.
The labels by word and image warnings would cover half a pack of cigarettes sold in retail outlets, and 20% of the advertising of cigarettes.
Federal law in question, also regulate the amount of nicotine and other substances in tobacco products and limit the promotion and related promotional products at public events like sporting events. Free speech was the only aspect of the question, in this case.
Several other claims on labels are pending in federal court, a part of two decades of federal and state efforts to force tobacco companies to limit their advertising, and live for billions of dollars of public and private class action requirements of the health risks of smoking.