By Nedra Pickler
Washington D.C. - The federal government fought an uphill battle Wednesday to convince a skeptical judge that tobacco companies should be required to put large graphic photos on cigarette packs to show that the habit kills smokers and their babies.
Washington D.C. - The federal government fought an uphill battle Wednesday to convince a skeptical judge that tobacco companies should be required to put large graphic photos on cigarette packs to show that the habit kills smokers and their babies.
Cigarette
makers told U.S. District Judge Richard Leon at a hearing that they
can't be forced to spread the government's anti-smoking advocacy with
"massive, shocking, gruesome warnings" on products they legally sell.
Attorneys for the Obama administration countered that the photos of dead
and diseased smokers it wants on all cigarette packs are "factually
uncontroverted."
Leon
has already ruled that the cigarette makers are likely to succeed in
their lawsuit to stop the requirement, which was supposed to go into
effect next year. Leon blocked the rule from taking effect until after
the lawsuit is resolved.
Leon
found in his earlier ruling that the nine graphic images approved by
the Food and Drug Administration in June go beyond conveying the facts
about the health risks of smoking or go beyond that into advocacy — a
critical distinction in a case over free speech.
Leon
also ruled the size of the labels suggests they are unconstitutional —
the FDA requirement said the labels were to cover the entire top half of
cigarette packs, front and back and include a number for a stop-smoking
hotline. The labels were to constitute 20 percent of cigarette
advertising, and marketers were to rotate use of the images.
The
judge showed no sign that he was changing his position in favor of the
government after the hour-long hearing Wednesday. "It sounds like they
are headed to a place where you have to watch a 10-minute video before
you can even buy a pack of cigarettes," he said.
The
packaging the government wanted to require included color images of a
man exhaling cigarette smoke through a tracheotomy hole in his throat; a
plume of cigarette smoke enveloping an infant receiving a mother's
kiss; a pair of diseased lungs next to a pair of healthy lungs; a
diseased mouth afflicted with what appears to be cancerous lesions; a
man breathing into an oxygen mask; a cadaver on a table with
post-autopsy chest staples; a woman weeping; a premature baby in an
incubator; and a man wearing a T-shirt that features a "No Smoking"
symbol and the words "I Quit"
The
Obama administration has appealed Leon's preliminary injunction
stopping the rule from taking effect. The U.S. Court of Appeals for the
District of Columbia is scheduled to hear the case April 10.
Attorney
Mark Stern, representing the government, told Leon they don't expect
he'll change his mind after siding so strongly with the tobacco
companies in his initial ruling. But he said the government disagrees
and argued the images factually show what can happen to smokers. "This
will kill you," Stern said. "This will kill your baby."
Tobacco
lawyer Noel Francisco said the government is free to try to tell
Americans how to live their lives, but not to require cigarette
manufacturers "to serve as the government's unwilling spokesman in that
paternalistic endeavor."
Congress
instructed the FDA to require the labels by a wide bipartisan majority,
following the lead of the Canadian regulations that require similarly
graphic images on cigarette packs. But Leon said Wednesday "there's just
nothing — nothing — on the record" to indicate lawmakers consider the
First Amendment implications of compelling commercial speech.
The
cigarette makers that sued the FDA are R.J. Reynolds Tobacco Co. of
Winston-Salem, N.C., Lorillard Tobacco Co. of Greensboro, N.C.,
Commonwealth Brands Inc. of Bowling Green, Ky., Liggett Group of Mebane,
N.C., and Santa Fe Natural Tobacco Co. of Santa Fe, N.M.
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