By Joe Palazzolo
A federal appeals court in Cincinnati broadly upheld a law requiring tobacco companies to display large warning images on cigarette packs, in a key victory for the federal government in its anti-smoking campaign.
The U.S. Court of Appeals for the Sixth Circuit held that the labels “serve as disclaimers to the public regarding the incontestable health consequences of using tobacco” and do not unconstitutionally restrict tobacco companies’ speech.
The tobacco companies came away with an important victory, too. The court struck down a provision of the law barring them from using color or imagery in their advertisements, calling it “vastly overbroad.”
A spokesman for R.J. Reynolds Tobacco Co., which filed a lawsuit challenging the law, said the company was “pleased” the court approved the continued use of colors and imagery in its advertisements. The spokesman said the company was reviewing the opinion and considering “next steps.”
The warning labels, a requirement of the 2009 Family Smoking Prevention and Tobacco Control Act, have been the subject of closely watched litigation elsewhere.
A federal judge in Washington, D.C. recently ruled that nine images put forth by the FDA — including one of a diseased pair of lungs and another of a man smoking through a tracheotomy hole in his throat — impinged on the tobacco companies’ First Amendment rights. The federal government has appealed the ruling.
The case decided Monday doesn’t address the nine images, only the law’s requirement that the graphic warnings comprise the top 50% of the front and back of cigarette packs.
In an unusual move, Judge Eric Clay both wrote the majority opinion and dissented from it. He was simpatico with the two other judges on the panel — Jane Branstetter Stranch and Michael Barrett — on most aspects of the law, but Judge Clay found a “constitutional flaw” in the requirement for color graphic warning labels.
The government can compel a company to provide truthful information, but it “is less clearly permissible for the government to simply frighten consumers or to otherwise attempt to flagrantly manipulate the emotions of consumers as it seeks to do here,” with the images, he said.
Other companies challenging the law include Discount Tobacco City & Lottery Inc., Lorillard Tobacco Co., National Tobacco Company LP, Commonwealth Brands Inc. and American Snuff Company LLC.