Advertisers Likely to File Suit Over Harsh New Cigarette Warnings

There are nine different warnings, each of which include a graphic picture—horrific images of blackened lungs, stained teeth, cadavers, and open wounds. Together, they make up the most significant change to cigarette labels in more than 25 years. By September 2012, all cigarette packs, cartons, and advertising must display the labels, which include a warning accompanied by a phone number: 1-800-QUIT-NOW.

Advertisers, represented by the Association of National Advertisers, have charged that the new labels run afoul of the First Amendment, and are considering steps, including a lawsuit, to push back against the FDA's action. (Tobacco companies filed suit in federal court in 2009 over a range of new regulations, including the then-proposed warnings; they lost on a similar First Amendment claim. The case is now on appeal.)

"The pictures are not neutral. It is unconstitutional when the labeling goes beyond factual and neutral, which these do," said Dan Jaffe, general counsel for the Association of National Advertisers, which filed in opposition to the new warnings  during the comment period in January. "This is forcing businesses to carry out propaganda for the government."

The FDA argues that the labels will go a long way toward curbing tobacco use, which is responsible for 443,000 deaths each year, making it the leading cause of premature and preventable death, according to the Centers for Disease Control and Prevention.

The FDA proposed the warnings in November 2010, as required under the Family Smoking Prevention and Tobacco Control Act signed into law by President Obama in June 2009.

“These labels are frank, honest, and powerful depictions of the health risks of smoking, and they will help encourage smokers to quit, and prevent children from smoking,” Health and Human Services Secretary Kathleen Sebelius said in a statement.