By TIM THORNBERRY Kentucky Correspondent
WASHINGTON, D.C. — Over the last year and a half, the government has instituted a series of regulations as part of its control of the tobacco industry. But last week, cigarette producers felt victory as a federal court blocked the way, at least temporarily, for the placement of larger, more graphic warnings on cigarette packs, a move that was set to go into effect next year. In November 2010, the U.S. Department of Health and Human Services (HHS) announced a plan to print bigger and bolder warnings on cigarette packaging and advertisements, that would include the use of graphic images to “drive home the point that smoking is a health danger,” according to information from the agency. Those warnings include, among others, images of diseased lungs and a deceased smoker.
That move came as part of the Family Smoking Prevention and Tobacco Control Act passed by Congress in 2009 that gave the U.S. Food and Drug Administration (FDA) the power to regulate tobacco. Some of the country’s largest tobacco manufacturers filed suit in U.S. District Court to block implementation of the rule, arguing it violated their First Amendment rights.
This recent ruling came from U.S. District Judge Richard Leon, who wrote in his findings: “Upon review of the pleadings, the parties’ supplemental pleadings, oral argument, the entire record and the applicable law, the Court concludes that plaintiffs have demonstrated a substantial likelihood that they will prevail on the merits of their position that these mandatory graphic images unconstitutionally compel speech, and that they will suffer irreparable harm absent injunctive relief pending a judicial review of the constitutionality of the FDA’s rule. “For that and the other reasons stated herein, I hereby grant plaintiffs’ Motion for Preliminary Injunction.”
Leon also wrote the government repeatedly failed to answer the court’s question during oral argument about when the dissemination of purely factual, uncontroversial information crosses the line into advocacy. “It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start, smoking: An objective wholly apart from disseminating purely factual and uncontroversial information,” Leon wrote.
While the final decision still faces further court action, tobacco companies are breathing a sigh of relief, at least for now. “We are pleased with the judge’s ruling and look forward to the court’s final resolution of this case,” said Bryan Hatchell, director of financial communications for R.J. Reynolds, one of the plaintiffs in the case.
In a press release from Lorillard, another plaintiff in the case, Floyd Abrams, a partner in the New York law firm of Cahill Gordon & Reindel, representing that company, is quoted: “Today’s ruling reaffirms fundamental First Amendment principles by rejecting the notion that the government may require those who sell lawful products to adults to urge current and prospective purchasers not to purchase those products.” Not everyone is pleased, however; Matthew Myers, president of the Campaign for Tobacco Free Kids, said in a statement the Justice Department should appeal the decision.
“Judge Leon’s ruling ignores the overwhelming scientific evidence about the need for the new cigarette warnings and their effectiveness. It also ignores decades of First Amendment precedent that support the right of the government to require strong warning labels to protect the public health,” the statement noted.
Regarding the mandated labeling, this recent decision comes after a federal court in Kentucky ruled in favor of the government last year. Myers made reference to that ruling in his statement.
“It is but one decision in a long legal battle that could end up before the U.S. Supreme Court, and another federal judge has already upheld the law’s requirement for large, graphic cigarette warnings,” he said.
The White House weighed in on the decision, as well. In a statement read by Press Secretary Jay Carney, the administration said: “Tobacco companies shouldn’t be standing in the way of common-sense measures that will help prevent children from smoking. But we are confident that Big Tobacco’s attempt to stop these warnings from going forward will ultimately fail.”
Tobacco-producing states have watched the proceedings carefully as revenues from their crop continue to fall. In Kentucky, an industry that once supported more than 40,000 tobacco farms has dwindled to fewer than 8,000, by some estimates. USDA National Agricultural Statistics Service (NASS) estimates show a 9 percent decline in expected pounds from last year with 8,000 fewer harvested acres than 2010 numbers. Nationally, the NASS estimates tobacco production to decline by 12 percent over last year.
The declines come in part due to changing worldwide market conditions as well as decreases in the number of people using tobacco, but industry supporters have long argued the government is determined to eliminate tobacco use altogether.
Leon began the conclusion of his decision by writing: “This case poses a constitutional challenge to a bold new tact by the Congress, and the FDA, in their obvious and continuing efforts to minimize, if not eradicate, tobacco use in the United States.” |