Federal Judge says: No labels for you

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The FDA s efforts to mandate the display of graphic images on cigarette packs have been blocked by a judge s ruling. Declaring that the regulation violates the tobacco companies First Amendment right to free commercial speech and would likely be considered unconstitutional, U.S. District Judge Richard Leon stopped the regulation from taking effect until a lawsuit filed by the companies against the graphic images is resolved.

The FDA mandate, which was legislated in the 2009 Family Smoking Prevention and Tobacco Control Act, would require that cigarette companies place images on packages such as pictures of diseased lungs, a mouth covered in cancerous lesions, and a cadaver following an autopsy along with the phone number of a quitsmoking hotline.

As ACSH s Dr. Gilbert Ross explains, in order for such a restriction on labeling to be constitutionally acceptable, the requirement must be much narrower, confined to factual information, and not appeal to emotions or be aimed at getting smokers to quit. The problem with these graphic images, according to the judge s ruling, is that they go beyond simply conveying the facts about smoking risks some of the images were altered to provoke an emotional response, which as Judge Leon writes, "is wholly apart from disseminating purely factual and uncontroversial information.

Furthermore, there remains the question of whether these graphic labels would actually serve the intended purpose of reducing smoking initiation among young people or encouraging current smokers to quit. ACSH's Dr. Elizabeth Whelan comments, Intuitively, you d think this would work. But the evidence just isn t there to support such a measure. Cigarette smokers are addicted, she adds, so no graphic label is going to deter them. Indeed, ACSH has written previously on the failure of research to demonstrate a positive effect of graphic warning labels on either preventing young people from starting to smoke or encouraging current smokers to quit.

Considering this, Dr. Ross questions the FDA s allocation of so much of their limited resources to an initiative that, according to the evidence, would have little overall effect on smoking behavior. With finite resources, he says, there are more important and more effective measures that they should be focusing on. If the evidence supported the benefits of such labels in reducing the toll of smoking, I d be in favor of them.

Yet even if the warnings would not result in widespread reductions in smoking, ACSH s Dr. Josh Bloom notes that since the FDA has already spent so much of its resources on this project, at this point, it might not hurt to have these graphic warnings appear on packages. Even if they only discourage a few people here and there from starting to smoke, it can t hurt.