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Bogus Challenge to Cigarette Warnings

9 April 2012

The tobacco industry has never been bashful about fighting back against attempts to regulate the promotion of its deadly, addictive products. The latest is an effort to derail new regulations requiring large health warnings on cigarette packages by making baseless First Amendment claims. It is the subject of an important case being heard on Tuesday by a federal appeals court in Washington.

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There is evidence that the current surgeon general warnings on the side of cigarette packs are ineffective and virtually invisible. So Congress passed a law in 2009 requiring that large graphical and text warnings about smoking’s harm cover the top half of the front and back of cigarette packs beginning in September 2012.

The Food and Drug Administration then chose nine dramatic images to replace the current text-only warnings, including a cadaver on a slab and another of a man with smoke coming out of a tracheotomy hole.

Before the court now are two related rulings by a Federal District Court judge, Richard Leon, blocking implementation of the new labeling plan. Judge Leon concluded that the government’s prominent use of emotionally charged images “calculated to provoke the viewer to quit” smoking crossed a line. They went from conveying uncontroversial factual information, he said, to compelling tobacco firms to advance the government’s “obvious antismoking agenda” in violation of their free speech rights.

Reversing Judge Leon should be an easy call. The Supreme Court has long upheld restrictions on commercial speech that protect consumers. The imagery ordered up by the government does not amount to impressible ideological advocacy or “compelled speech.” The United States Court of Appeals for the Sixth Circuit reached that conclusion in a nearly identical case last month.

A health warning does not have to be ineffective to be constitutional. The real message, of course, is backed by abundant evidence: smoking kills.

A version of this editorial appeared in print on April 10, 2012, on page A22 of the New York edition with the headline: Bogus Challenge to Cigarette Warnings.

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