Court: Tobacco Health Lables Constitutional

By Terry Baynes

 

United States - A U.S. law requiring large graphic health warnings on cigarette packaging and advertising does not violate the free speech rights of tobacco companies, a federal appeals court ruled on Monday.

Cigarette makers had sued to stop the U.S. Food and Drug Administration's new labeling and advertising requirements on grounds the rules violated their First Amendment right to communicate with adult tobacco consumers.

But the Cincinnati-based U.S. Court of Appeals for the 6th Circuit upheld the bulk of the FDA's new regulatory framework, including the requirement that tobacco companies include large warning images on cigarette packs.

The decision comes on the heels of a Washington, D.C., judge's ruling in a different, but related, case that rejected the FDA requirements and seems to set up a clash over the constitutionality of the FDA rules.

Floyd Abrams, a lawyer for Lorillard, noted the difference in tone in the two rulings and said the 6th Circuit case, the Washington case, or both, would likely end up in the U.S. Supreme Court.

The difference in the two cases is that the FDA had not introduced the specific images when the companies filed the 6th Circuit suit. While the Washington suit focused on the images, the appeals court addressed the larger issue of the FDA's regulatory power.

"There can be no doubt that the government has a significant interest in preventing juvenile smoking and in warning the general public about the harms associated with the use of tobacco products," Judge Eric Clay wrote for the three-judge 6th Circuit panel.

Congress passed the law in 2009 and ordered the FDA to adopt specific warning-label regulations. The labels must be in color, must cover the top 50 percent of a cigarette pack's front and back panels, and must cover the top 20 percent of print advertisements.

After tobacco companies, including R.J. Reynolds Tobacco Co and Lorillard Inc's Lorillard Tobacco Co, sued to block the law, the FDA unveiled nine images to go on cigarette packs, including graphic pictures of dead bodies, diseased lungs and rotting teeth. The companies accused the government of forcing them to disseminate an anti-smoking message in order to stigmatize and embarrass already-informed consumers.

The appeals court panel's two-judge majority disagreed with the companies on the label requirement, finding that the fact that the specific images might trigger disgust does not make the requirement unconstitutional.

The majority did note that it was only addressing the constitutionality of the statute on its face, and not the specific images that the FDA introduced after the suit was filed.

DISSENT ON IMAGES

Judge Clay, who wrote the main opinion upholding most of the FDA regulations, dissented, however, on the graphic label ruling. He called the rule "simply unprecedented." While the government can require a product manufacturer to provide truthful information, "it is less clearly permissible for the government to simply frighten consumers or to otherwise attempt to flagrantly manipulate the emotions of consumers as it seeks to do here," Clay wrote.

On February 29, D.C. district judge Richard Leon ruled that the FDA's images violated the tobacco companies' free-speech rights. He found that the warning labels were too big and that the government has numerous other tools at its disposal to deter smoking, such as raising cigarette taxes or including simple factual information on the labels rather than gruesome images.

The Obama administration appealed that ruling to the U.S. Court of Appeals for the District of Columbia Circuit on March 5.

Lorillard lawyer Abrams says Monday's appeals court decision does not necessarily conflict with the Leon's decision.

"The court made clear it was focusing on the statute as written, as opposed to the implementation of it," Abrams said.

The Department of Justice did not immediately provide comment.

The 6th Circuit also upheld other FDA regulations, including restrictions on the marketing of "light" cigarettes, on the distribution of free tobacco samples, and event sponsorship. The court struck down a rule barring the use of color and graphics in tobacco advertising.

"We are pleased the 6th Circuit Court of Appeal upheld the continued use of colors and imagery in our advertisements," said R.J. Reynolds spokesman Bryan Hatchell.

DOJ Asks Court To Keep Secret Any Partnership Between Google, NSA

By Mike Scarcella

United States - The Justice Department is defending the government's refusal to discuss—or even acknowledge the existence of—any cooperative research and development agreement between Google and the National Security Agency.

The Washington based advocacy group Electronic Privacy Information Center sued in federal district court here to obtain documents about any such agreement between the Internet search giant and the security agency.

The NSA responded to the suit with a so-called “Glomar” response in which the agency said it could neither confirm nor deny whether any responsive records exist. U.S. District Judge Richard Leon in Washington sided with the government last July.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit is scheduled to hear the dispute March 20.

EPIC filed a Freedom of Information Act request in early 2010, noting media reports at the time that the NSA and Google had agreed to a partnership following the cyber attacks in China that year against Google.
EPIC asked for, among other things, communication between the NSA and Google about Gmail and Google’s “decision to fail to routinely encrypt” messages before Jan. 13, 2010.

The NSA’s response to the request for records noted that the agency “works with a broad range of commercial partners and research associations” to ensure the availability of secure information systems. The agency, however, refused to confirm or deny any partnership with Google.

The security agency said it routinely monitors vulnerabilities in commercial technology and cryptographic products because the government relies heavily on private companies for word processing systems and e-mail software.

“If NSA determines that certain security vulnerabilities or malicious attacks pose a threat to U.S. government information systems, NSA may take action,” DOJ Civil Division lawyers Catherine Hancock and Douglas Letter said in a brief in the D.C. Circuit in January.

DOJ’s legal team said that acknowledging whether NSA and Google formed a partnership from a cyber attack would illuminate whether the government “considered the alleged attack to be of consequence for critical U.S. government information systems.”

NSA said it cannot provide documents—or confirm their existence—because the information would alert adversaries about the security agency’s priorities, threat assessments and countermeasures.

DOJ said media reports about the alleged Google partnership with NSA do not constitute official acknowledgement.

The Washington Post and The New York Times both reported that Google contacted the NSA after the Jan. 2010 cyber attack, which the company said was rooted in China and targeted access to accounts of Chinese human rights activists. The Wall Street Journal said NSA’s general counsel worked out a cooperative research and development agreement with Google.

EPIC’s attorneys, including Marc Rotenberg, the group’s president, said in court papers that the document request includes records that are not relevant to the NSA’s information assurance mission.

“The NSA mischaracterizes EPIC’s FOIA Request by stating that responsive documents would reveal ‘information about a potential Google-NSA relationship,’” Rotenberg said.

The crux of the records request, Rotenberg said, is Google’s switch to application encryption by default for Gmail accounts soon after the cyber attack. Google in 2008 began allowing users to encrypt mail passing through the company servers, EPIC said in its brief, but encryption was not provided by default.

EPIC’s brief said the failure of the NSA to conduct a search for records “deprives the court of the ability to meaningfully assess the propriety” of the agency’s response that it can neither confirm nor deny the existence of responsive records.

“Without first conducting the search, not even the agency can know whether there is a factual basis for its legal position,” Rotenberg said.

EPIC said its records request does not seek documents about NSA’s role to secure government computer networks. “Google provides cloud-based services to consumers, not critical infrastructure services to the government,” Rotenberg said.