Ken Wassum, Director, Clinical Quality & Support
The United States District of Columbia Circuit Court of Appeals has dealt a serious blow to the FDAs efforts to add 9 different graphic warning labels to cigarette packs in a ruling announced on August 24, 2012. In a 2-1 decision the court ruled in favor of the tobacco giant R.J. Reynolds citing first amendment rationale. Writing the deciding opinion, Justice Brown agreed with R.J. Reynolds argument that, [B]y effectively shouting well-understood information to consumers, [the] FDA is communicating an ideological message, a point of view on how people should live their lives: that the risks from smoking outweigh the pleasure that smokers derive from it, and that smokers make bad personal decisions, and should stop smoking. In effect, the graphic images are not warnings, but admonitions: [D]ont buy or use this product.
Justice Brown went on to question governments authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interestin this case, by making every single pack of cigarettes in the country [a] mini billboard for the governments anti-smoking message..."the FDA...has not provided a shred of evidence" that the warning would be effective in discouraging youth from initiating smoking or to encourage adult smokers to quit.
Justice Browns statement flies in the face of the World Health Organization report that clearly states, The greatest progress as measured by population coverage has been in the area of health warnings on tobacco packaging . as demonstrated by the actions of the UK, Australia, Brazil, Canada, and many other countries who have taken strong action to reduce the human cost of tobacco use and have found graphic warning effective and the right thing to do.
In the dissenting opinion Justice Rodgers hit the nail on the head by arguing in affirming the grant of summary judgment to the tobacco companies, the court applies the wrong level of scrutiny, disregarding the tobacco companies history of deceptive advertising and the governments stated primary goal, which is to effectively convey the negative health consequences of smoking on cigarette packages and in advertisements Unlike other consumer products, tobacco products are dangerous to health when used in the manner prescribed. They are also highly addictive. Consequently, tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States.
So once again the courts have dealt a serious blow to common-sense public health efforts that are proven to reduce smoking and the disease and suffering it causes. It puts the free speech rights of an industry that has lied and misled the public for decades, arguing that their products were neither harmful nor addictive when they knew full well that they were, above the wellbeing of American children, adolescents and adults.
The recent CDC Tips from Former Smokers campaign depicting real former smokers who have suffered devastating illness and disfigurement has shown that the effects of smoking are graphic, emotional, and disturbing. They are not a black-and-white text label that says Smoking causes cancer, currently on cigarette packaging in the US. The campaign has demonstrated that these images prompt smokers to make quit attempts as evidenced by the more than two-fold increase in calls to state tobacco quitlines around the country asking for help with quitting.
Lets pray the FDA appeals to the U.S. Supreme Court and they make the right ruling this time. But for now, the U.S. lags behind many other developed countries around the world in protecting their citizens from ci