Legally Harsh Cigarette Warnings

The words are blunt, the images stark — unconstitutionally so, say tobacco companies, which turned to a federal judge last week seeking a reprieve from warnings the Food and Drug Administration has mandated for cigarette packs. “Cheap Davidoff Cigarettes are addictive,” the warnings say. “Cigarettes cause fatal lung disease.” “Smoking can kill you.” One image shows a man blowing cigarette smoke through a tracheotomy hole. Another displays a picture of healthy lungs next to a smoker’s grotesquely diseased lungs. The picture and warning together will take up half of the front of a pack when the regulation kicks in next year. The label must include a number for a smoking cessation program. A warning must take up the top 20 percent of a page of print advertising for tobacco products.
Manufacturers, including R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co., argue that the warnings aren’t needed because the dangers of smoking are well known. The new mandates go far beyond what the Constitution allows and violate the companies’ First Amendment rights, they assert. “Never before in the United States have producers of a lawful product been required to use their own packaging and advertising to convey an emotionally charged government message urging adult consumers to shun their products,” industry lawyers argue. They allege that there is little to no evidence that enhanced warnings would reduce the rate of smoking. The companies faced off against the government in a hearing Wednesday, and a decision is expected next month. Their arguments are not frivolous but should not prevail. Warning labels have been required for decades but have become “invisible” and ineffective. Studies and the experiences of countries like Canada that have carried enhanced warnings show that graphic images better communicate the dangers to children and to adults who have difficulty reading. The government has a compelling interest in trying to ward off preventable deaths that supersedes any First Amendment rights claimed by the tobacco industry. The surgeon general has estimated that smoking-related deaths account for about 20 percent of all mortality in the country, or roughly 440,000 deaths annually. A product with this track record would likely be banned from the market if introduced today. The new warning labels are, as the tobacco companies argue, shocking and disturbing, but they are also truthful.