Panel’s rul­ing a boost to anti-smok­ing warn­ings

The Washington Times Daily - - Politics - BY CH­ERYL WETZSTEIN

The fed­eral gov­ern­ment can re­quire to­bacco com­pa­nies to “re­serve sig­nif­i­cant pack­ag­ing space” for an­ti­smok­ing warn­ings and graphic images on their cig­a­rette la­bels, a three­judge ap­pel­late panel ruled Mon­day.

“We re­turn to where we be­gan — the lack of con­sumer aware­ness of to­bacco’s se­ri­ous health risks re­sult­ing from the decades-long de­cep­tion by to­bacco com­pa­nies,” Judge Jane Branstet­ter Stranch of the 6th U.S. Cir­cuit Court of Ap­peals in Cincin­nati wrote in a rul­ing that was unan­i­mous in some sec­tions and 2-1 in oth­ers.

Cur­rent to­bacco-la­bel warn­ings do not ef­fec­tively in­form con­sumers on these health risks, even though they in­clude “the undis­puted fact that plain­tiffs’ prod­ucts lit­er­ally kill users and, of­ten, mem­bers of the fam­i­lies of users,” she wrote.

Con­se­quently, “we hold that the act’s warn­ings are rea­son­ably re­lated to the gov­ern­ment’s in­ter­est in pre­vent­ing con­sumer de­cep­tion and are there­fore con­sti­tu­tional.”

The act refers to the 2009 Fam­ily Smok­ing Preven­tion and To­bacco Con­trol Act, which au­tho­rized the Food and Drug Ad­min­is­tra­tion to cre­ate anti-smok­ing mes­sages and graphic warn­ings that must promi­nently ap­pear on cig­a­rette pack­ages and in to­bacco ad­ver­tis­ing. Fda-ap­proved images in­clude a hu­man ca­daver, dis­eased lungs and a man with smoke com­ing out of a hole in his neck, as well as warn­ings that say “Cig­a­rettes cause fa­tal lung dis­ease” and “To­bacco smoke can harm your chil­dren.

The cir­cuit court’s rul­ing is op­po­site that of U.S. Dis­trict Court Judge Richard J. Leon, who, in a re­lated case, said in Fe­bru­ary the FDA la­bel­ing rules were un­con­sti­tu­tional be­cause they “com­pelled” cer­tain speech. Judge Leon’s rul­ing is be­ing ap­pealed, with oral ar­gu­ments sched­uled in April.

David Howard, spokesman for R.J. Reynolds To­bacco Com­pany, one of the plain­tiffs in both law­suits, said, “It’s im­por­tant to note that the court, in a split decision, only held that graphic warn­ings could legally be dis­played on cig­a­rette pack­ag­ing and ad­ver­tise­ments.

“This court did not ad­dress the con­sti­tu­tion­al­ity of the nine graphic images the FDA seeks to im­pose. Those nine warn­ings have been found un­con­sti­tu­tional” by Judge Leon, he said, adding, “We con­tinue to re­view the rul­ing and are con­sid­er­ing next steps.”

The FDA does not com­ment on pro­posed, pend­ing or on­go­ing lit­i­ga­tion, a spokes­woman said.

Su­san M. Liss, ex­ec­u­tive di­rec­tor of the Cam­paign for To­bacco-free Kids, said Mon­day’s rul­ing is “a pow­er­ful refu­ta­tion” of Judge Leon’s rea­son­ing. She ap­plauded the cir­cuit court’s agree­ment that to­bacco-mar­ket­ing tac­tics, such as spon­sor­ships, to­bacco-branded mer­chan­dise and free sam­ples of to­bacco prod­ucts, should be re­stricted.

Dr. Robert W. Block, pres­i­dent of the Amer­i­can Academy of Pe­di­atrics, also praised the rul­ing. “For the 3,000 chil­dren un­der the age of 18 who start to smoke each day, this rul­ing could not come soon enough,” he said.

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