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Graphic Cigarette Warning Label Upheld by U.S. Appeals Court

March 19 (Bloomberg) -- Tobacco companies can be forced to put graphic warning labels on cigarette packaging without violating their constitutional rights to free speech, a U.S. appeals court ruled.

The labels, mandatory under the 2009 Family Smoking Prevention and Tobacco Control Act, now include photos picked by the U.S. Food and Drug Administration that show a man expelling cigarette smoke from a hole in his throat, diseased lungs, and a cadaver. R.J. Reynolds Tobacco Co., Lorillard Tobacco Co. and other makers and sellers of tobacco products challenged the law as unconstitutionally compelling speech.

“The warning labels required by the act do not impose any restriction of plaintiffs’ dissemination of speech,” the U.S. Court of Appeals in Cincinnati said. “Instead the labels serve as disclaimers to the public regarding the incontestable health consequences of using tobacco.”

The 2-1 ruling today follows a Feb. 29 decision on a separate case by a federal judge in Washington, who said the FDA’s image requirement does violate the cigarette makers’ free-speech rights. The U.S. is appealing that decision.

The proposed warning labels would cover 50 percent of the front and back of cigarette packages. The U.S. argued that the requirement is “to ensure that the health risk message is actually seen by consumers in the first instance.”

Court Record

The specific FDA-prescribed warnings and images hadn’t been selected when U.S. Judge Joseph H. McKinley in Bowling Green, Kentucky issued the ruling reviewed by the Cincinnati-based court and weren’t part of the record before that panel. They were considered by the Washington court.

In another part of the same case, the appellate court agreed with the McKinley’s November 2009 decision upholding restrictions on marketing of so-called modified-risk light tobacco products. FDA rules bar using the products for event sponsorship and the branding of non-tobacco merchandise.

The appellate panel also backed McKinley’s decision that cigarette makers can use color in advertising while reversing his finding that the act had unconstitutionally restricted company statements indicating tobacco is relatively safe because it’s an FDA-regulated product.

U.S. Circuit Judge Eric Clay, who wrote the opinion, dissented in part, calling the mandate “simply unprecedented.”

Truthful Information

While it’s permissible for the government to require companies to provide truthful information to the public, Clay wrote, “it is less clearly permissible for the government to simply frighten consumers.”

Charles Miller, a spokesman for the U.S. Justice Department, said the agency declined to comment on the court’s decision.

Bryan Hatchell, a spokesman for R.J. Reynolds, said, “It’s important to note that the court, in a split decision, only held that graphic warnings could legally be displayed on cigarette packaging and advertisements.” The judges didn’t rule on the constitutionality of the FDA-proposed images, he said.

A unit of Winston Salem, North Carolina-based Reynolds American Inc., R.J. Reynolds makes Camel, Pall Mall, Winston and other cigarette brands.

Lorillard cigarette brands include Newport, Kent and True.

Specific Images

The Washington court’s decision addressed the FDA regulation as it applies to the specific images the agency selected, Floyd Abrams, a lawyer for Lorillard, said in a telephone interview today. The Cincinnati court, by contrast, addressed only the constitutionality of requiring the use of pictures, he said.

“What they didn’t have before them were the pictures and the accompanying language,” Abrams said. A ruling on the legitimacy of photos “doesn’t mean that it’s constitutional to require a picture of a man with a hole in his chest or other rather grotesque pictures chosen by the FDA,” he said.

The appellate case is Discount Tobacco City & Lottery Inc. v. U.S., 10-5234 and 10-5235, U.S. 6th Circuit Court of Appeals (Cincinnati). The Washington case is R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration, 11-cv-1482, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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