• by Thom Forbes , November 8, 2011

A federal judge ruled yesterday that the graphic representations of the impact of smoking that the Food and Drug Administration would like to see on cigarette packaging likely violate the free-speech rights of tobacco companies, and he granted a preliminary injunction blocking their use.

The nine images of tobacco’s effects that the FDA previewed in June include rotting teeth and gums, smokers exhaling through a tracheotomy hole, struggling for breath in an oxygen mask and lying dead in the morgue with a long chest scar.

The tobacco industry had requested the action, Reuters’ Alina Selyukh and Jeremy Pelofsky report, pending a final decision on their constitutionality. “They argued they needed a quick ruling because they would have to start in November or December [2012] and spend millions of dollars to comply with the requirements.”

In a 29-page decision, Judge Richard J. Leon of the U.S. District Court in Washington says that the labels are not factual and require the companies to use their packages as billboards for what he describes as the government’s “obvious anti-smoking agenda,” Duff Wilson reports in the New York Times. Leon writes that the tobacco companies have “demonstrated a substantial likelihood” that their challenge will prevail and that they would suffer “irreparable harm” if the warnings were required while the battle is fought in the courts.

“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 says. He also says that they “appear to be more about shocking and repelling than warning.”

Anti-smoking advocates are urging the Justice Department to appeal the decision to a federal appeals court, and legal experts say it may ultimately be decided in the Supreme Court. But, for now, the FDA and the Justice Department have no comment on what they’ll do.

“Judge Leon’s ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness,” says Matthew L. Myers of the Campaign for Tobacco-Free Kids in a statement. “It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health.”

The White House is “disappointed” in the ruling, Rob Stein reports in the Washington Post. “Tobacco companies shouldn’t be standing in the way of common-sense measures that will help prevent children from smoking. We are confidant Big Tobacco’s attempt to stop these warnings from going forward will ultimately fail,” it says in a statement.

Christopher W. Hansen, president of the American Cancer Society Cancer Action Network, calls the decision “bad for public health” and a “victory for Big Tobacco,” James R. Carroll reports in the Louisville Courier-Journal. But the tobacco companies see the decision as reaffirming the First Amendment “by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products,” in the words of attorney Floyd Abrams, who is representing Lorillard.

A First Amendment expert who has sued tobacco companies in the past over what he feels are inadequate warnings actually agrees with the ruling. "You have to draw the line somewhere," James Wheaton, tells the Los Angeles Times’ Alexa Vaughan. "You can't tell them the whole box will be a warning label with a logo in the corner. The smoking companies don't come into this with clean hands either, but that doesn't mean you can take away their constitutional rights."

But Wheaton, who teaches at UC Berkeley, says that some of the labels -- such as one with pictures of healthy lungs next to diseased lungs -- might be determined “to be based on fact and therefore would have a better chance of passing constitutional muster.”

That’s an interesting distinction. Perhaps anti-smoking advocates should steal a tactic from the tobacco and alcohol companies who claim that their marketing doesn’t entice kids to drink or smoke but only causes already-indulging adults to switch brands. Smoking doesn’t necessarily cause cancer or emphysema to start -– who can say for sure what other factors may be involved? -- it just makes lungs that look pink and pristine switch into a charred, deathly mess.