The legal fight regarding graphic warnings appears far from over as a federal appeals court has ruled that the Food and Drug Administration is allowed to force tobacco companies to affix the warnings on cigarette packaging.
The U.S. Court of Appeals for the Sixth Circuit, located in Cincinnati, Ohio, ruled on Monday that graphic warning labels can convey factual information (as the textual warnings on tobacco products do now), and therefore are constitutionally sound.
Judge Jane Branstetter Stranch wrote in her opinion that "people with the same illness can and often will suffer a variety of differing symptoms, but one wouldn't say that a list of symptoms characterizing a particular medical condition is nonfactual and opinion-based as a result. So too with graphic images."
While these warning labels would only apply to cigarettes, people in the cigar industry fear that such regulation could one day be applied to cigars. It’s not without precedent. Cigars sold in Mexico, for example, must carry graphic warnings very similar to the one struck down in this ruling. And, for a short time in 2010, New York City forced tobacconists to post similar graphic warnings at the point of sale and in their shops—a judge later struck down the requirement.
Three cigarette makers, including a subsidiary of Britain's Imperial Tobacco Group PLC (the parent company of Altadis S.A.) had originally filed the lawsuit in Kentucky in 2009, after the FDA was granted control over the U.S. tobacco industry and the agency tried to mandate nine extremely graphic warning labels. Some of the graphic images included a cloud of smoke near a newborn’s face and a dead smoker lying on an autopsy table with stitches in his chest.
The cigarette makers argued such warnings violated their right to free speech, but in 2010, U.S. District Judge Joseph H. McKinley ruled against the tobacco companies, saying the warnings did not infringe on their rights. Monday’s ruling was the result of the cigarette makers’ appeal.
This lawsuit is separate from one that was filed last August in Washington by the same cigarette makers, which resulted in a federal judge blocking the new requirement earlier this year.
While the court said graphic warnings were not unconstitutional, it shied away from ruling specifically on the nine graphic warning labels in question.
"This court did not address the constitutionality of the nine graphic images the FDA seeks to impose," said Bryan Hatchell, a spokesman for R.J. Reynolds Tobacco Co. in a USA Today report.
FDA has already made its impact on the cigarette indusdtry, banning all
flavored cigarettes save for menthol, limiting the release of new
products, limiting advertising and placing restrictions on the use of
words such as "light"—and other tobacco products, but so far the cigar
industry has remained largely unaffected. In 2010, though, the agency
publicly declared it intends to regulate premium cigars, too.
As a response, the Cigar Rights of America and the International Premium Cigars & Pipe Retailers association have been involved with introducing two bills, S. 1461 and H.R. 1639, that aim to remove the FDA’s jurisdiction over the premium cigar industry.