July 04, 2015
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April 12, 2012

Federal Court Questions Graphic Marketing Mandates for Cigarette Packaging: As Big Tobacco Screams "Free-Speech Violation," Panel Now Debating Whether Disturbing Package Imagery Is Genuinely About Safety — Or Whether It's Anti-Smoking Advocacy

After the government slapped Big Tobacco with demanding new marketing mandates last year, a federal appeals court is now considering the constitutionality of requiring large graphic photos on cigarette packs to show that smoking can harm or kill smokers. After some of the nation's largest tobacco companies, including R.J. Reynolds, sued to block the mandate, a three-judge panel this week questioned whether the government's proposed warnings cross from factual information into anti-smoking advocacy. The nine proposed graphic warnings include color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat and a plume of cigarette smoke enveloping an infant receiving a mother's kiss. In February, U.S. District Judge Richard Leon agreed — he blocked the requirement, saying it ran afoul of the First Amendment's free speech protections. At this week's hearing, judges questioned how far the government could go, such as putting graphic warnings on cars that "speed kills," an AP news release reports. One of the panelists, Judge Janice Rogers Brown, asked if the government could mandate a cigarette warning that said, "Stop! If you buy this product, you are a moron," or "Smokers are idiots." Brown also questioned if the government was on a path to put warnings on other legal products. "Where does this stop?," she asked, the AP reports. Lawyers for the tobacco companies made a similar argument in their brief. They superimposed the FDA tobacco image of a cadaver onto a McDonald's bag with the warning that fatty foods may cause heart disease, and the FDA's image of a premature baby in an incubator on a bottle of alcohol with a warning that drinking during pregnancy can cause birth defects. They also showed a Hershey's chocolate bar with half the wrapper covered by a picture of a mouth of rotting teeth and a warning that candy causes tooth decay. Justice Department attorney Mark Stern said those comparisons trivialized an important issue. "Addiction really means addiction," he said, and it was not like eating candy, according to the AP report.

Some other images on the revised packaging are accompanied by language that says smoking causes cancer and can harm fetuses. The warnings were to cover the entire top half of cigarette packs, front and back, and include the phone number for a stop-smoking hotline, 1-800-QUIT-NOW, the AP reports.

A third judge on the panel, Judith W. Rogers, didn't ask any questions of the Obama administration, but she grilled Noel J. Francisco, a lawyer for tobacco companies. Rogers asked Francisco if he was challenging the accuracy of the FDA's text warnings, such as smoking causing cancer and heart disease. The lawyer said he was not, but that the government was going beyond mere facts by including a phone number to quit. "The government is trying to send a powerful message: Quit smoking now," he said. When the message tells people to live a certain way, it crosses the line from facts to advocacy, he argued, reports the article by AP writer Frederic J. Frommer.


The Court is Right

The court got this one right. Any of us in the PR business could be on either side of this coin. I don't smoke and don't support it, but if it's legal, then perhaps basic warnings are called for, not unlike the disclaimers we see for pharmaceutical products. But the government is pushing for advocacy, and when such strong advocacy comes from a central government, we're looking at exercises of power that those of us who live/work according to the First Amendment should be concerned. Ironically, the source of funding for most free healthcare for underprivilged kids across the country comes from tobacco industry taxes. Should fewer people buy cigarettes, the funding for free healthcare for millions would dry up. Do you think the feds really want that?

This is about Anti-smoking Propaganda

The judges were being nice when they called it "advocacy." The designs the administration wants to put on packaging is anti-smoking propaganda. When the government forces private industry to subvert their own products in such an over-the-top manner, a line is being crossed. We're no longer talking about consumer patterns and public health issues. We're talking about the constitutional limitations on government and why they must exist. When you consider this and put it in the larger context of a health insurance mandate, there's a disturbing pattern. From a PR perspective, the tobacco companies and any other industry so targeted by the government would have to start to attack the fundamental issues of how much control the government should have on private industry and individuals.

Smoking e- cigarettes

Well, if you compare traditional cigarettes with the modern day’s e-cigarettes, you will have to agree with the fact that they are not risky on heart and lungs. Apart from the many other e-cig positive points, they even helps avoiding passive smoking.


"Cigarette smoking is dangerous to your health" can be read in many cigarette boxes and labels. Obviously, people associate the health risks of smoking to health problems such as lung cancer and other forms of cancer, respiratory diseases, coronary heart disease, and stroke.

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