Free Speech and Tobacco Sales


Should the government have the right to force cigarette manufacturers to put graphic images of the damage from smoking on their products?

That’s the question that has been winding its way through the courts. Expect the US Supreme Court to deal with it eventually. Right now, it’s in the US District Court of Appeals for Washington DC.

From the FDA’s perspective, taking up half of the display area on a pack of cigarettes with factual information is within their purview. The cigarette companies feel a bit differently – they claim it’s a free speech issue, and they are being forced to “say” something they disagree with.

And the winner is...

The latest temporary winner is RJ Reynolds (et. al.) which won an injunction against the FDA. It was the FDA who filed the latest appeal to have the injunction removed. The decision can be found here. The expectation that it will get to the US Supreme Court comes because of the free speech issue raised by the tobacco companies.

The images are very graphic. Rotten teeth, a corpse at autopsy and a man wearing a breathing mask are just a few. The FDA’s rules, based on 2009 legislation (Family Smoking Prevention and Tobacco Control Act), gives the agency 50% of the cigarette pack, both front and back, for the images. From the manufacturers’ point of view, this amounts to forcing them to carry public service announcements right on their product.

Are warnings effective?

Underlying this is the realization that the current warnings haven’t been as effective as hoped. The small-text warnings about smoking and pregnancy (and others) are rotated through a cycle of different versions, and the images would be handled the same way.

Interestingly, Australia recently went another way – they mandated that all cigarettes would be sold in plain brown wrappers with warnings and images printed on them. The idea is to remove the brand advertising from cigarette packs and increase the visibility of the messages.

If the FDA wins their appeal, and wins again in the Supreme Court, expect to see the new images on cigarettes by September, 2012.


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