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. OS,

    I know several recovering alcoholics and/or former drug addicts … they gave up the booze and rehabbed the drugs but everyone of them still smoke. They all say the same thing … the addiction to nicotine is the hardest addiction to break.

    I know quite a few smokers who have given up cigs … but most of them bum one from others now and then.

  2. Oh yeah, Tim, nice dodge on finding a weasel way to avoid dealing with the real issue. Make up shit and call people obscene names.

  3. naive and total sexist to boot. Give up smoking for a month and get back to me on how easy it is.

  4. Tim, I appreciate your sincerity, but you are hopelessly naive. Siz seconds after taking a drag on a cigarette, the body reacts by releasing a lot of dopamine. It is exactly the same chemical released when you have a hit of cocaine or have an orgasm. Tobacco is one of the most powerfully addictive substances I know about. And by the way, I manage one of the most successful alcohol and drug addiction treatment programs in the state. It is a hell of a lot easier to treat some drug addictions than to treat tobacco addiction.

    Prohibition created the Mafia and much organized crime. Tell somebody they cannot have something they have been using regularly and they will find a way to get it. Legal or not. Are you ready to be robbed or killed for money to buy ‘illegal’ cigarettes?

    1. Otteray Scribe: “Tim, I appreciate your sincerity, but you are hopelessly naive.”

      Well, you’re hopelessly a cunt. Try expressing yourself without name calling, next time, and I might read your comment.

  5. And Otteray – I’d like to add, as a smoker myself, there’s no way I would go through the hassle of getting black market cigarettes from a dealer.

  6. Hey Tom,

    lock me away for a month and guarantee my job when I’m done with rehab because, that’s what it’s gonna take.

    Your experience is lacking the fact that Fred Flinstone and Barney Rubble sold me Winstons in between cartoon scenes of their TV show. Maxwell Smart and Agent 99 told me smoking was cool.

    I’m a fucking addict you intolerant sob. And I have quit so many goddam times you could not possibly understand the anguish I go through every motherfucking morning you ignorant piece of shit.

    Nicotine addiction is way worse than heroin. Don’t ask me how I know this you prick.

    Put that motherfucking settlement money to work HELPING ME QUIT, not grossing me out. Because THAT shit…doesn’t fucking work.

    Fuck you and the arrogant horses ass you rode in on.

  7. So what is the question I have…Smoker will smoke regardless of what is on the label…

  8. Tim Wayne proposes that tobacco just be banned altogether.

    That worked out really well for alcohol and marijuana, Tim. Do you really want to go there?

    1. Otteray Scribe:

      “Tim Wayne proposes that tobacco just be banned altogether. That worked out really well for alcohol and marijuana, Tim. Do you really want to go there?”

      Marijuana and alcohol are intoxicants. They’re pleasurable to a lot of people. Pleasurable enough, in fact, that many are willing bypass any restrictions put in place by any means.

      Are cigarettes pleasurable? Perhaps, but I don’t think anyone could argue they are pleasurable or intoxicating to the same degree. If they were illegal, people couldn’t smoke them all day like many do now. Banning them would reduce the consumption. The simple fact that they are available from every single corner store and supermarket makes it impossible for many to quit.

      I do foresee a black market for tobacco, but unlike the one for pot, I think it’s a good tradeoff.

  9. For years, now, the hazards of smoking have been preached from every possible “pulpit” in the land, yet Dumb and Dumber continue to smoke. Ergo, I do not think the proposed tobacco labels would have done any good.

  10. Ok, fine. Then when all these smokers have respiratory issues later (or even sooner) in life, combined with the fact that they won’t be able to get insurance (would you insure a drug addict?) – they’ll have to rely on the government/tax dollars for their “care.” The government is already over-extended as it is and this just adds (unnecessarily in my view point) to the burden on us all – as does obesity (expecially in children) & type II diabedes (both influenced highly by high fructose corn syrup – oh yeah, that’s legal too and it’s in just about everything we eat). The fact that our government doesn’t protect us from purveyors of lethal products only underscores the fact that we aren’t really represented fairly – as corporations get priority.

    Hey – congratulations to the “winning” team of fucking losers who foist POISON on us and we’re supposed to be “okay” with it. Fuck you, ya goddamn bastards – i hope you are victims of your own products.

  11. Raff and Bruce,
    As I stated above they do tax us but not till it hurts. They tax us little by little. A nickle here and four or five months later a dime. They really don’t want to stop us from smoking or they would tax us $5.00 or $10.00 a pack. Hit us with a $5.00 $10 $20 tax in one day and thousands, hundreds of thousands of people will stop cold turkey. But they have never done that. WHY???
    And speaking of government trying to abolish bad behavior and unhealthy consumption…. why has alcohol never been kept from advertising on TV as they did for cigarettes in the 60s or was it the 70s? Why no hefty taxes on Anhauser Busch? Why isn’t drinking as taboo as smoking? Aside from second hand smoke I am much less likely to kill many people at one time with a few cigarettes than a few Gin and Tonics. Drinking Amaretto-on-Ice is glamorous. Laying dead in a ditch not so much. How about with a picture of black lung on a cigarette package they put the tragic results of a drunk driving death on every beer can???
    I don’t like smoking and maybe the government will help me quit someday but not by putting up nasty pics on a cigarette pack.
    As far as helping teens never taking up the habit, peer pressure has a lot more to do with beginning to smoke and I don’t think there is anything that is gross enough to stop a teenage boy and where a teen boy goes a teen girl will follow, even those girls who are squeamish over the nasty pictures. Education about the health concerns in school and I mean much more than a mandatory hour class in the sixth grade will do much more than pictures on a pack. Sure go ahead with the pictures but I don’t see them as anything more than a panacea for public consumption.

  12. Bruce,
    I agree that I don’t think these labels will have any substantial impact on the decision to smoke. I think the best way is to tax them until it hurts.

  13. I think they should just ban tobacco. It is no downside and plenty of positives. The taxes we would save every year on smoking-related illness alone is reason enough to ban it.

  14. BTW:

    Not a coincidence Cains political ad,with Campaign manager smoking a cigarette:

    “Many of us on the progressive side of the fence have asked of this Republican pack, “What regulations are they referring to?” Obvious targets, like the EPA, go without saying. But anti-tobacco regulations? Who would have thought? So, as of today anyway, meet Herman Cain, leader of the pack and stealth candidate for Big Tobacco. His long-standing support for smoking rises to the level of a core belief and he should be hounded to address the subject. And you wonder why Mr. Cain’s Chief of Staff, Mark Block, was smoking in that ad? If you review Mr. Cain’s tenure as CEO and Lobbyist-in-Chief of the National Restaurant Association, you will realize that he never made an empty gesture.”


  15. I’m a smoker and I support these labels. I support this effort to dissuade new smokers from picking up the habit.

    “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.”

    I disagree that the limitation should be on what is “uncontroversial.” I think provoking the viewer to quit or never start smoking should precisely be the goal, here.

    Finally, in a country where we ban marijuana, which has never been shown to have killed anyone, why are we grousing about warning labels on a substance which kills nearly half a million Americans every year? It’s madness.

  16. This argument is in the commercial sphere about commercial products. Since no one says it is forbidden to make a product illegal, I view the labels as a tax on the product, and so legal, even though my opinion is that the level of taxation – including monetary tax – must be publicly well justified when it reaches the levels it has reached.

    Commerce is motivated by money, and so it will lobby or advertise points of view that potentially no one in the company believes to be true. And we know (from slavery) that people who are making money will defend their methods, however vile.

    But I believe that the real crime is that the currently targeted growth market for cigarettes is poor youth overseas.

  17. I am a smoker of more than 40 years off and on and while the pictures are vile they do not make me want to quit. I sat by my fathers bed as he died a hideous death of lung cancer. My cousin and I would go out to the porch and shamefacedly smoke, calling ourselves and each other all the bad names we could think of as we smoked. That was 15 years ago and still I smoke. I am ashamed of every cigarette but I still smoke. I am an addict and I do not doubt it. I’ve tried any number of ways to quit but never any lasting success. I have a heart condition and I still smoke. I KNOW how unhealthy it is and I still smoke. So how will a vile picture stop an addict?
    The government makes me laugh with their “efforts” to make people quit. Back in the ’90s they introduced a tax hike designed to hurt the pocketbook and therefore cause people to quit. The initial tax hike, if I remember correctly, was over a dollar a pack. Yeah, that would hurt bad enough to make most people quit, Right? No the tax was in $.05 (nickle) increments over more than a year. A dollar a pack is killer but a nickle. Since then taxes on cigarettes have continued to rise as well as price aside from taxes (after all, we will pay, so why shouldn’t RJ Reynolds have a share of the increase)
    The holier than thou non-smokers holler and the government has to make a show of trying to make us quit but they well know that we addicts are made of hardier stuff than that and whats an ugly picture next to the nasty taste of tobacco and stinking clothes and hair that we derive such pleasure from?
    I once had an argument with a vendor for Kool cigarettes. He swore that cigarettes weren’t addicting. We laughed at the company line as we both smoked our coffin nails.
    The government makes a mighty profit from my habit… now do they really want to lose that revenue?

  18. Rafflaw, the labels may be over the top, but they aren’t offensive to this non-smoker. I have my doubts about their effectiveness; I suspect committed smokers will just get numbed to them.

    I hope I’m wrong about that and that the government wins on appeal. If the government loses, well, on my wish list of constitutional amendments is a narrow exception to the First Amendment: “Congress may regulate or prohibit the advertising of any food, drug, cosmetic, or implantable device that it determines to be harmful to human health.”

    Warning labels are examples of “libertarian paternalism,” as described in Cass Sunstein’s book “Nudge.” I don’t have a problem with letting the government regulate the advertising of products it could in theory outlaw entirely. For example, if we ever legalize marijuana (a policy I support) I would want there to be appropriate health warnings, and I wouldn’t let the sellers glamorize the product in their advertising, as the tobacco companies have been able to do for decades.

    The Framers, as men of the Enlightenment, believed there might come a day when the rational mind would dominate people’s behaviors. In the 20th Century advertisers, political propagandists and neuropsychologists demonstrated how easy it is to bypass the rational mind and appeal directly to the emotional unconscious. I don’t have a problem with the government limiting the freedom to manipulate people into consuming a harmful product. It doesn’t affect the core values of the First Amendment, which are the protection of political speech, intellectual debate and artistic expression.

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