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.

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