For those following the various aspects of the legality of domestic tobacco labelling restrictions under international economic law, this U.S. court decision (reported by the AP) may be of interest:
A judge on Monday blocked a federal requirement that would have begun forcing tobacco companies next year to put graphic images including dead and diseased smokers on their cigarette packages.
U.S. District Judge Richard Leon ruled that it's likely the cigarette makers will succeed in a lawsuit to block the requirement. He stopped the requirement until the lawsuit is resolved, which could take years.
Leon found the nine graphic images approved by the Food and Drug Administration in June go beyond conveying the facts about thehealth risks of smoking or go beyond that into advocacy — a critical distinction in a case over free speech.
The packaging would have included color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a mother's kiss; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a cadaver on a table with post-autopsy chest staples; a woman weeping; a premature baby in an incubator; and a man wearing a T-shirt that features a "No Smoking" symbol and the words "I Quit"
"It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking — an objective wholly apart from disseminating purely factual and uncontroversial information," Leon wrote in his 29-page opinion. He pointed out that at least some were altered photographs to evoke emotion.
The judge also pointed out the size of the labels suggests they are unconstitutional — the FDA requirement said the labels were to cover the entire top half of cigarette packs, front and back and include a number for a stop-smoking hotline. The labels were to constitute 20 percent of cigarette advertising, and marketers were to rotate use of the images. Leon said the labels would amount to a "mini-billboard" for the agency's "obvious anti-smoking agenda."
The Justice Department argued that the images, coupled with written warnings, were designed to communicate the dangers to youngsters and adults. The FDA declined to comment on the judge's ruling.
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Congress instructed the FDA to require the labels, following the lead of the Canadian regulations that require similarly graphic images on cigarette packs. The cigarette makers say their products have had Surgeon General warnings for more than 45 years, but that they never filed a legal challenge against them until these images were approved.
