DC Circuit Panel Shoots Down Graphic Tobacco Warnings

Decided on free speech grounds, the 2-1 decision blocks FDA from requiring tobacco companies to include stark warnings and photos of people fighting diseases caused by smoking.

A 2-1 decision Aug. 24 by three judges from the U.S. Court of Appeals for the D.C. Circuit blocks an FDA plan to force R.J. Reynolds Tobacco Company and other tobacco companies to place graphic photographs on their products' packages. The companies claimed the federal agency was infringing on commercial speech and two judges on the appeals court agreed, with Circuit Judge Janice Rogers Brown writing in the majority opinion that FDA failed to provide any evidence showing the required warnings would in fact reduce smoking rates.

This FDA photo shows before (left side) and after views of how tobacco products are now displayed and would be if the warnings requirement takes effect. The FDA requirements were to take effect Sept. 22, 2012.

Winston-Salem, N.C.-based R.J. Reynolds issued a statement after the victory. "We are pleased that the Court of Appeals agreed with Reynolds that consumers can and should be fully informed about the risks of tobacco use in a manner consistent with the U.S. Constitution," said Martin L. Holton III, executive vice president and general counsel for R.J. Reynolds. "Reynolds is committed to providing tobacco consumers with accurate information about the various health risks associated with smoking. These inflammatory images and the provocatively-named hotline cannot rationally be viewed as pure attempts to convey information to consumers. They are unabashed attempts to evoke emotion (and perhaps embarrassment) and browbeat consumers into quitting."

FDA would have required that the hotline number 1-800-QUIT-NOW be printed on each warning, and there were nine warnings in all. Smoking-related illnesses kill an estimated 440,000 Americans annually.

Several other countries, including Australia, now require such graphic warnings on tobacco products.

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