Daily Independent (Ashland, KY)


March 21, 2012

Opposite view

Decision on graphic labels contradicts an earlier one

ASHLAND — A federal appeals court has upheld a federal law requiring cigarette packages to carry graphic warnings about the dangers of smoking and restricting how tobacco products may be marketed and advertised.

However, the ruling by a three-judge panel from the U.S. Sixth District Court of Appeals in Cincinnati is not the final word on the matter nor does it mean that the graphic labels soon will be appearing on packs of cigarettes. In fact, Monday’s ruling conflicts with an earlier court ruling in Washington and virtually assures that the U.S. Supreme Court ultimately will decide this issue.

Our own view is that the earlier ruling by a judge in Washington that said the federal law violated the First Amendment’s free speech clause was the right one. As much as we dislike smoking and think the entire nation would be much healthier if no one smoked, we think the federal law places far too many requirements on how a legal product can be marketed in the U.S.

After all, if Congress can mandate that all cigarette packs include graphic images of the effects of smoking, what’s to prevent our elected leaders from requiring that photos of obese children be included on packages of Twinkies or that every candy bar and Big Mac include a warning label?

 Monday’s ruling is based on a case that was originally filed in Kentucky. The  three-judge panel ruled that the government has an interest in preventing consumers from being deceived by the marketing practices of tobacco companies and the Family Smoking Prevention and Tobacco Control Act’s requirements are aimed at that goal.

Judge Jane Branstetter Stranch emphasized past practices by tobacco companies to deceive consumers about the hazards of tobacco products and said the new requirements provide “truthful information” to consumers as they make decisions about using tobacco.

“It bears emphasizing that the risks here include the undisputed fact that Plaintiffs’ products literally kill users and, often, members of the families of users,” Stranch wrote. “Tobacco products will kill up to one-half of the people who use them as they are intended to be used.”

The law, which took effect in June 2009, lets the FDA limit, but not ban, nicotine. It also lets the agency ban candy flavorings and marketing claims such as “low tar” and “light,” require warning labels — including up-close photos of a smoker’s rotting teeth, a man exhaling smoke from a tracheotomy hole in his neck and the damaged heart muscle of a smoker — be emblazoned over cartoon images. It would also regulate what goes into tobacco products and publicize those ingredients.

Tobacco companies in 2009 sued in Bowling Green, challenging marketing restrictions that mandate tobacco companies reserve 50 percent of the front and back of cigarette packaging, 30 percent of the front and back of smokeless tobacco packaging and 20 percent of tobacco advertising for full-color graphic health warnings issued by the Food and Drug Administration.

The appeals court decision upholds most of a ruling by U.S. District Judge Joseph H. McKinley in 2010, including a ban on tobacco companies sponsoring athletic, social and cultural events or offering free samples or branded merchandise. The judge also upheld a requirement that warning labels cover half the packaging on each tobacco product.

Stranch found that the text warnings required since 1984 “a college reading level” to understand and are probably not appropriate for youths and people with lower reading levels and weren’t reaching much of the intended audience. The law requiring the graphic warnings corrects that problem, Stranch wrote.

Stranch underestimates the intelligence of American consumers. It does not require a college degree to understand the rather clear labels that now appear on cigarette packages.

Smokers are fully aware of the health hazards of their habit. How could they not be? That they still choose to smoke is not the fault of the false marketing of cigarette companies who are simply trying to profit from a dangerous, but legal product.

It is difficult to imagine that a U.S. Supreme Court that has struck down laws limiting political speech will rule differently in defending the right to advertise legal products.

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