Feds Strike Out on Cigarette Warning Labels

Court of Appeals rules that 'mini billboards' violate free speech; Supreme Court could be next

The federal government's proposal to force tobacco manufacturers to place 36 graphic cigarette warning labels on the top half of the front and back of all cigarette packages was struck down by a federal appeals court Friday. In a 2-1 decision, the U.S. Court of Appeals in Washington, D.C. upheld a lower court ruling that the federal government's warning labels violated the First Amendment, ordering the Food and Drug Administration to find another way to convince Americans to kick the habit.

The labels, proposed in November 2010, depict horrific images of cadavers and blackened lungs and were designed to scare people away from smoking.

The nation's largest tobacco companies, including R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Commonwealth Brands, Liggett Group LLC and Santa Fe Natural Tobacco Co., argued that the labels violated their First Amendment rights because the labels went beyond what is factual and neutral.

The D.C. appeals court agreed. "This case raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interests, in this case, by making 'every single pack of cigarettes in the country a mini billboard' for the government's anti-smoking message," wrote Judge Janice Rogers Brown for the majority.

Renowned First Amendment attorney Floyd Abrams, a partner with Cahill Gordon & Reindel representing Lorillard, told the Associated Press the decision was "a significant vindication of First Amendment principles." He has often described the warning labels as more akin to "mini billboards" for the government's anti-smoking message.

The government also fell short in proving that the labels would work. "FDA failed to present any data…showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates," Brown wrote.

Friday's ruling contradicts a decision by a federal appeals court in Cincinnati that ruled in March the law was constitutional, setting up the case for a possible review by the Supreme Court.

Since the federal government's cigarette labels have been tied up in court, it has turned to advertising, running TV ads that mimic the printed labels.