Top court allows graphic images on cigarette packages

Two of the labels that the top court supported by letting a lower-court decision stand.
Two of the labels that the top court supported by letting a lower-court decision stand. (U.S. Food and Drug Administration)
Posted: April 24, 2013

Freedom of speech for tobacco and pharmaceutical companies is hardly free of argument, and that was evident again Monday, when the U.S. Supreme Court let stand a lower-court decision approving the use of graphic images on cigarette packages.

Several cigarette makers say the Food and Drug Administration's proposed rules cramp advertising freedom. The government says cigarettes kill more than 440,000 people per year and raise health-care costs for everyone.

The FDA-created images included a man holding a cigarette while "smoking" out of a hole in his trachea, smoke wafting near an infant's head, and a toe tag on a corpse.

Proponents of the FDA rules and images, including the American Cancer Society and doctors' group, heralded the nondecision decision, but this legal and regulatory fight has many fronts and may yet return to the high court.

Though the Supreme Court let stand decisions by the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit that favored the FDA, the federal government decided last month not to seek Supreme Court review of an earlier decision favorable to cigarette makers in the District of Columbia Circuit. At the time, the FDA said it would reconsider its planned rules, but was not specific.

The circuit-court majorities differed significantly on the issue of requiring graphic images, and such differences can eventually lead to Supreme Court review.

Drug companies - which have some of the same allies as tobacco in the business-litigation community - also have an ongoing, multifront legal battle with the FDA over what advertising and promotion is permissible.

FDA spokeswoman Jennifer Haliski said in a statement that the agency was pleased with Monday's decision, that it would continue implementing the Tobacco Control Act of 2009, and that it remained "committed to reducing the death and disease from tobacco use by bringing science-based regulation to the manufacturing, marketing and distribution of tobacco products."

One hundred years after the introduction of Camel cigarettes with distinctive - for the time - advertising, the brand still generated most of the $6.96 billion of revenue for R.J. Reynolds Tobacco last year. However, its parent company, Reynolds American, had a 9.5 percent drop in net income in 2012 than in 2011. Reynolds was one of the cigarette makers involved in both appeals-court decisions.

Company spokesman Bryan Hatchell said Reynolds was disappointed with Monday's decision. But he noted that the Sixth Circuit said the company can continue using colors and images in its advertising, and that the D.C. Circuit's opinion that the FDA graphic-image rule is unconstitutional remains in place.


Contact David Sell at 215-854-4506, dsell@phillynews.com, or follow on Twitter @phillypharma. Read his blog at www.philly.com/phillypharma.

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