Federal Judge Grants Injunction of New Tobacco Labels

We have previously discussed the new labeling rules for cigarette packages and I have not hidden my criticism of the graphic images from both a legal and policy perspective. This afternoon, U.S. District Judge Richard Leon handed down a major decision granting an injunction of the rules — a move based on his belief that the cigarette makers are likely to succeed in blocking the new packaging rules.

The nine graphic images include such disgusting pictures as a smoker exhaling cigarette smoke through a tracheotomy hole in his throat and a cadaver on a table with post-autopsy chest staples. Leon held that ‘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.” He characterized the labels as a “mini-billboard” for the agency’s “obvious anti-smoking agenda.” I have stated the same concerns in the past — questioning whether such graphic labels would be used for any other products that the government disfavors in the future.

Leon draws a line between conveying information and advocating the rejection of a product:

Unfortunately for the Government, the evidence here overwhelmingly suggests that the Rule’s graphic-image requirements are not the type of purely factual and uncontroversial disclosures that are reviewable under this less stringent standard. Indeed, the fact alone that some of the graphic images here appear to be cartoons, and others appear to be digitally enhanced or manipulated, would seem to contravene the very definition of “purely factual.”That the images were unquestionably designed to evoke emotion – or, at the very least, that their efficacy was measured by their “salience,” which the FDA defines in large part as a viewer’s emotional reaction, see CompI. ~ 58 (citing 76
Fed. Reg. at 36,638-36,639) – further undercuts the Government’s argument that the images are purely factual and not controversial, see, e.g., Defs.’ Opp’n at 22-29. Moreover, 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. Thus, while the line between the constitutionally permissible dissemination of factual information and the impermissible expropriation of a company’s advertising space for Government advocacy can be frustratingly blurry, here – where these emotion-provoking images are coupled with text extolling consumers to call the phone number “1-800-QUIT” – the line seems quite clear.

I have always been bothered by this trend and concerned over what limits exist for the government. Can the government force disgusting images on any product that it disfavors or finds inimical to health?

The issue of corporate speech has long divided the free speech community. The Supreme Court has long adopted a “common sense distinction” between individual and commercial speech:

We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.

Ohralik v. Ohio State Bar Ass’n (1978)

Judge Leon is clearly trying to appeal to that common sense distinction in this opinion. For free speech advocates, any opposition to smoking should not obscure the dangers of the government being able to compel speech, including images designed to deter people from buying a product.

The victory goes to the legal team for R.J. Reynolds Tobacco Co. of Winston-Salem, N.C., Lorillard Tobacco Co. of Greensboro, N.C., Commonwealth Brands Inc. of Bowling Green, Ky., Liggett Group of Mebane, N.C., and Santa Fe Natural Tobacco Co. of Santa Fe, N.M.

Here is the decision: Reynolds.Leon.Memorandum.

Source: ABC

42 thoughts on “Federal Judge Grants Injunction of New Tobacco Labels”

  1. @xboxershorts: i was referring to the tobacco industry in my comments. i’m sorry you are having such a tough time quitting smoking and i don’t take your personal assault as any more than frustration. It just galls me that these “industries” (including alcohol, Monsanto, and ADM) continue to get tax breaks, corporate welfare, and that they are even allowed to produce this crap and sell it to us so they can make a profit!

  2. anon nurse1, November 7, 2011 at 11:24 pm

    so a choclate and coffee party may be in order….the cigar can be the grab bag prize and need never be lit ! 🙂

    I have to say though, after reading so many ‘arguments’….and I know it is hard for the Government to ‘keep up’ what with the wheels being so large and grinding fine and all….
    My mother smoked because her doctor told her that cigarettes would help to strengthen her asthmatic lungs. That was a long time ago and science learned alot along the way. She smoked through her pregnancies…..she smoked through her marriage….she smoked, elegantly so, as every ad and every television show and every ashtray in every waiting room encouraged. When my father died early we, her children, all took up smoking at 1 time or another(…most of us have since quit) Initially her lungs did get stronger….because nicotine has some very positive qualities to it. The ‘delivery’ system was what killed her. And she did try to quit, many times…even before it became known that she had suffered damage, even before there were helpful drugs and it was no longer socially acceptable.
    The thing is….the knowledge could have been acted on by the courts loooong before it was. The courts could have been more favourable towards the people our government system is suppose to protect. The corporations that profiteer at the expense of others good will and trust and the ability of the courts to turn a blind eye to the blind eye that these corporate interests turn is profound. FAITH IS NOTHING IF SCIENCE IS IGNORED
    I have recently been involved with courts and lawyers and am appalled at the ridiculous machinations of the machine to have its way. At the damage it is willing to continue to inflict, support and create in order to be able to ‘hope’ that its political ideology will be proved out…..maybe. It seems to have a ‘Kill everything that doesn’t agree with you or gets in your way’.
    I watched lawyers turn themselves into pretzels trying to prove that night was day and day was night…to support their own failings..all at someone elses expense of course…and to prevent any possibility of ‘losing’ a case that had long ago been usurped by their own purpose. And I’m not sure if the Judges were mesmerized or what.

    At this moment in time our systems of checks and balances is unravelling…Science will not be undone….G*d will not be undone….but our very slow moving courts that are willing to inflict the damages of time beyond the pale….they, I think, have shown their true colors and are pretty much undone. It is all money to them.

    The imbalances we are all facing now were created by the courts ‘protections’….

    Cigarettes,after the honeymoon, like many addictions, are coping mechanisms. Coping mechanisms are RESPONSES TO IMPOSED CONDITIONS. And while it is not impossible to quit smoking, or drinking, or taking anti-depressants, or eating chocolate, or excessive movie watching,or pork rinds or chips or whatever, it may be that it is impossible to move heaven and earth when under such oppressive conditions that it would take more life-blood to do so than one has left on hand.

    And like most things that arise by conditioning, they will abate when the conditions, and the ignorance, cease.

  3. anon nurse,

    Now you’re talking my language … original Coke … coffee … my happy crutches

  4. Woosty,

    Cigars… I tried them, too. Even the smell makes me a little nauseous… Coffee and chocolate are my addictions… Oh, and potato chips and Coke — the real stuff.. forget the “diet” stuff…

  5. Thank goodness I never got hooked… I’ve often said that if I had, I’d have one in each hand… I wanted to have the experience, so I tried a few, while a freshman in college … All I got out of it was nausea and dizziness… Now that other stuff…well… I wish it were legal…;-)

  6. raff,

    Yeah but you went to a University that had a PIANO ON WHEELS in its Marching Band! That has got to fall under the realm of awful addictions. 😉

  7. Gene,

    I also have a friend like that. She loves to stand outside with the smokers and inhale. I go with her a lot of the times ’cause the smokers are damn friendly.

  8. i always said i’d quit if when it started to cause damage.

    i quit 15 mar 1998

    the tube to my o2 concentrator is 30 feet long plus 7 feet for the canula

    take another puff

  9. “Blouise, i quit smoking 25 years ago. Quit everything else 28 years ago.” (SwM)

    Everything?! 😉

  10. Otteray Scribe1, November 7, 2011 at 10:38 pm

    …Breaking the smoking habit is infinitely harder than almost all other recreational drugs. The craving stays strong for many years after quitting, and the nature of the addiction is such that if the “former” smoker takes even one drag off a borrowed cigarette, the craving is back as strong as ever.
    I can attest to that. My 6 month anniversary of quitting I had a dream that I picked up a cigarette, lit the match, took a drag….woke up and proceeded to feel immense guilt! It was amazingly real. But I had found the absolute cure to smoking…..just watch someone you love die slowly from emphysema and see howmuch easier it is to quit….

  11. Jerry Reed Hubbard (March 20, 1937 – September 1, 2008)

    Reed died in Nashville, Tennessee, on September 1, 2008, of complications from emphysema

  12. OS/Blouise,

    I know a guy who quit drinking and smoking cold turkey about 20 years ago. To his credit, he not only did it the hard way, he’s stuck to it. He hasn’t had a drink in 20 years, but cigarettes? He doesn’t smoke, but at a party, he loves to go talk to the smokers. He says he “loves the smell”.

  13. Blouise, the chemical makeup of tobacco and cigarette/cigar smoke is vastly more complex than alcohol and most all the recreational drugs. Did you know there are approximately 4,000 different chemicals in cigarette smoke? Breaking the smoking habit is infinitely harder than almost all other recreational drugs. The craving stays strong for many years after quitting, and the nature of the addiction is such that if the “former” smoker takes even one drag off a borrowed cigarette, the craving is back as strong as ever.

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