Courts hand down inconsistent rulings in cigarette cases

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

In June 2011, the Food and Drug Administration released nine new warnings for cigarette packets that were due to come into force this September. The warnings were under the Family Smoking Prevention and Tobacco Control Act, which required warnings such as “Cigarettes are addictive” and “Tobacco smoke causes harm to children” to be printed on cigarette packets. Images of a corpse and smoke-infected lungs would also have been required under the act.  However, a ruling handed down on Friday by the U.S. Court of Appeals for the District of Columbia finding that the FDA’s label requirement violated corporate speech requirements may halt the enactment of these warnings.

A group of tobacco companies led by R.J. Reynolds sued the FDA, arguing that the warnings would be cost-prohibitive and would dominate and damage the packaging and promotion of their brands. The issue was whether the new labeling was meant to only be factual and accurate in nature or was designed to discourage use of the products. A federal judge in March ruled in favor of the tobacco companies. The 2-1 U.S Court of Appeals for the District of Columbia panel has now affirmed that ruling.

Judge Janice Rogers Brown and Judge Arthur Raymond Randolph rejected the FDA’s assertion that it had a governmental interest in “effectively communicating health information” regarding the negative effects of cigarettes.

“The government’s attempt to reformulate its interest as purely informational is unconvincing, as an interest in “effective” communication is too vague to stand on its own,” said Brown. “Indeed, the government’s chosen buzzwords, which it reiterates through the rulemaking, prompt an obvious question: “effective” in what sense?”

In the ruling’s dissent, Rogers argued the rules do not violate commercial speech protections. “The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers,” said Rogers. “The tobacco companies’ decades of deception regarding these risks, especially the risk of addiction, buttress this interest.”

Other images required under the agency rules would have been: a man smoking through a tracheotomy hole in his throat; smoke wafting from a child being kissed by her mother; and a diseased mouth.

All the signs are pointing towards a Supreme Court ruling on this matter as a separate federal appeals court in Cincinnati in March held that the FDA law was constitutional. The free speech aspect is just one aspect to this law as it would also regulate the amount of nicotine in cigarettes and limit promotion of the products and related promotional merchandise at public events. With inconsistent rulings coming from various circuits, a Supreme Court case is looming.   

The issue continues to smoulder…


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